FOR IMMEDIATE RELEASE
NEWS RELEASE
March 22, 2011
For More Information, contact:
Luther Strange
Joy Patterson (334) 242-7491
Alabama Attorney General
Suzanne Webb (334) 242-7351
Page 1 of 1
AG STRANGE ANNOUCES CONVICTION UPHELD
FOR MURDER IN HOUSTON COUNTY
(MONTGOMERY) – Attorney General Luther Strange announced that the
Alabama Court of Criminal Appeals upheld the murder conviction of a Dothan man
on Friday. Gregory Gross, 27, was found guilty by a Houston County jury in August
of 2010 for the murder of Christopher Mackey.
Evidence presented at trial stated that Gross was told by a bouncer and the owner
of the establishment to leave Frank’s Billiards, located in the Dixieland community.
He refused to leave, and as the owner went to call the police, Gross shot and killed the
victim, Mackey, when he was aiming at someone else.
Gross was convicted and sentenced to 99 years imprisonment, and subsequently
sought to have his conviction reversed on appeal. The Attorney General’s office
argued for the Alabama Court of Criminal Appeals to affirm the conviction. The
court issued a decision on Friday, March 18, upholding the conviction.
The case was prosecuted at trial by Houston County District Attorney Doug
Valeska’s Office. It was handled on appeal by Attorney General Luther Strange’s
Appeals Division.
For additional details, see attached ruling by the Alabama Court of Criminal
Appeals.
–30–
501 Washington Avenue Montgomery, AL 36104 (334) 242-7300
www.ago.state.al.us REL: 03/18/2011
Notice: This unpublished memorandum should not be cited as precedent. See Rule 54, Ala.R.App.P. Rule 54(d),
states, in part , that this memorandum “shall have no precedential value and shal l not be cited in arguments or
briefs and shal l not be used by any cour t within this state, except for the purpose of establishing the application
of the doctrin e of law o f the case, res judicata , collateral estoppel, double jeopardy, or procedura l bar. “
Court of Criminal Appeals
State of Alabama
Judicial Building, 300 Dexter Avenue
P. O. Box 301555
Montgomery, A L 36130-1555
SAMUE L HENRY WELC H Lane W . Mann
Presiding Judge Clerk
MAR Y BECKER WINDOM Gerri Robinson
J . ELIZABETH KELLU M Assistant Clerk
LILE S C. BURK E (334) 229-0751
J . MICHAEL JOINER Fax (334) 229-0521
Judges
MEMORANDUM
CR-09-1909 Houston Circuit Court CC-09-1480
Gregory Gross v. Stat e of Alabam a
WINDOM, Judge.
Gregory Gross appeals his convictio n for murder , a
violatio n of ß 13A-6-2, Ala. Code 1 975 , and hi s resultin g
sentence of 99 year s i n prison . On September 15, 2010 , Gross
file d a motion for new tria l and a notic e of appeal . After
conducting a hearing , the circui t court denied Gross’s motion.
I.
On appeal, Gross argues that the Stat e failed to presen t
1 sufficien t evidence to support his murder conviction.
Specifically , Gross contends that the Stat e failed to prove
that he intended to kil l Christopher Mackey.
Section 13A-6-2, Ala. Code 1975 states, in pertinent
part :
“(a ) A person commits the crime of murder i f h e or
she does any of th e following :
“(1 ) With intent to cause the death of
another person, he or she causes the death
of the perso n “
Regarding the sufficiency of the State’s evidence to
support a conviction, this Court has repeatedl y held:
“In deciding whether there is sufficient
evidence to support the verdic t of th e jur y and th e
judgment of the tria l court, the evidence must be
reviewed in the light most favorable to the
prosecution . Cumbo v. State, 368 So. 2d 871 (Ala.
Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala.
1979). Conflicting evidence presents a jury
questio n not subjec t to review on appeal, provided
the state’s evidence establishes a prima facie case.
Gunn v. State, 387 So. 2d 280 (Ala. Cr . App.) , cert.
denied, 387 So. 2d 283 (Ala. 1 980 ) . The trial
court’s denial of a motion for a judgment of
acquitta l must be reviewed by determining whether
there existed legal evidence before the jury , at th e
time the motion was made, from which the jur y by
fai r inference could have found the appellant
guilty . Thomas v. State, 363 So. 2d 1020 (Ala. Cr .
App. 1978). In applying this standard, the
appellat e court will determine only i f legal
evidence was presented from which the jur y could
have found the defendan t guilty beyond a reasonable
doubt. Willis v. State, 447 So. 2d 199 (Ala. Cr .
App. 1983); Thomas v. State. When the evidence
raise s questions of fact for th e jury and such
evidence, i f believed , i s sufficien t to sustain a
conviction , the denia l of a motion for a judgment of
acquitta l by the tria l court does not constitute
2 error . Young v. State, 283 Ala. 676, 220 So. 2d 843
(19 6 9) ; Willis v. State.”
Breckenridge v. State, 628 So. 2d 1012, 1018 (Ala. Crim. App.
1993).
“‘In determining the sufficiency of the evidence to
sustai n the conviction, this Court must accept as
true the evidence introduced by the State, accord
the State al l legitimat e inferences therefrom, and
consider the evidence in the light most favorable to
the prosecution.’ Faircloth v. State, 471 So. 2d
485, 48 9 (Ala. Cr. App. 1 984) , affirmed, Ex parte
Faircloth , [471] So. 2d 493 (Ala. 1985).
“‘”The role of appellate courts i s not to
say what the facts are. Our role, … is
to judge whether the evidence is legally
sufficien t to allow submission of an issue
fo r decision to the jury.” Ex parte
Bankston, 358 So. 2d 1040, 1042 (Ala.
1978). An appellate court may interfere
wit h the jury’s verdict only where i t
reaches “a clear conclusion that the
findin g and judgment are wrong.” Kelly v.
State, 273 Ala. 240 , 244, 139 So. 2d 326
(1962). … A verdict on conflicting
evidence i s conclusiv e on appeal. Roberson
v. State, 162 Ala. 30, 50 So. 345 (1909).
“[W]here there i s ample evidence offered by
the state to support a verdict, i t should
not be overturned even though the evidence
offere d by the defendant is in sharp
conflic t therewith and presents a
substantia l defense.” Fuller v. State, 269
Ala . 312, 333, 113 So. 2d 153 (1959), cert.
denied, Fuller v. Alabama, 361 U.S. 936, 80
S. Ct. 380, 4 L. Ed. 2d 358 (1960 ).’
Granger [v. State], 473 So. 2d [1137,] 1139
[(Ala . Crim. App. 1985)].
“… ‘Circumstantial evidence alone i s enough to
3 support a guilt y verdict of the most heinous crime,
provided the jur y believes beyond a reasonable doubt
that the accused is guilty. ‘ White v. State, 294
Ala . 265, 272, 314 So. 2d 857 , cert. denied, 423
U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975).
‘Circumstantia l evidence is i n nowise considered
inferio r evidence and i s entitle d to the same weight
as direct evidence provided i t point s to the guilt
of the accused.’ Cochran v. State, 500 So. 2d 1161,
1177 (Ala. Cr . App. 1984), affirmed in pertinen t
part , reversed in par t on other grounds, Ex parte
Cochran, 500 So. 2d 1179 (Ala. 1985).”
White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).
Also ,
“‘[c]ircumstantia l evidence i s no t inferio r
evidence, and i t wil l be given the same
weight as direct evidence, i f it , along
wit h the other evidence, is susceptibl e o f
a reasonable inference pointing
unequivocall y to the defendant’s guilt.
Ward v. State, 557 So. 2d 848 (Ala. Cr.
App. 1990). In reviewing a conviction
based i n whol e or i n par t on circumstantial
evidence, the tes t to be applie d i s whethe r
the jury might reasonably find that the
evidence excluded every reasonable
hypothesis except that of guilt; not
whether such evidence excludes every
reasonable hypothesis but guilt, but
whether a jury might reasonably so
conclude. Cumbo v. State, 368 So. 2d 871
(Ala. Cr. App. 1978), cert. denied, 368 So.
2d 877 (Ala. 1979).’
“Ward, 610 So. 2d at 1191-92.”
Lockhart v. State, 715 So. 2d 895, 899 (Ala. Crim. App. 1997).
Further,
“‘[i]ntent , … being a state or condition of the
mind, i s rarely , i f ever , susceptible of direct or
positiv e proof, and must usually be inferred from
4 the facts testified to by witnesses and the
circumstances as developed by the evidence. ‘ McCord
v. State, 501 So. 2d 520, 528-529 (Ala. Cr. App.
1986), quoting Pumphrey v. State, 156 Ala . 103, 47
So. 156 (1908).”
French v. State, 687 So. 2d 202, 204 (Ala. Crim. App. 1995),
aff’ d i n part , rev’d i n par t on other grounds, 687 So. 2d 205
(Ala. 1996).
“‘The question of intent is hardl y ever capable of
direc t proof. Such questions are normall y question s
fo r the jury. McMurphy v. State, 455 So. 2d 924
(Ala. Crim. App. 1984); Craig v. State, 410 So. 2d
449 (Ala. Crim . App. 1981), cert. denied, 410 So. 2d
449 (Ala. 1982).’ Loper v. State, 469 So. 2d 707,
710 (Ala. Cr . App. 1985).”
Oryang v. State, 642 So. 2d 989, 994 (Ala. Crim. App. 1994).
The owner of Frank’s Billiards, Frank Lloyd, testified
that on the evening of September 22, 2009, he saw Gregory
Gross and Anthony Smith arguing and asked Gross to leave the
bar. Lloyd and hi s bounce r attempted to escor t Gross outside,
but Gross broke free of their grasp. Lloyd tried to grab
Gross a second time, but Mackey stepped in between them.
Mackey asked Lloyd not to kick Gross out of the bar and
stated , “If you going to pu t him out, put everybody out.” (R.
148). Afterwards, Lloyd asked Mackey to step aside and when
he refused, Lloyd said he would call the police . While Lloyd
was i n th e fron t of the ba r telephonin g th e police , he heard
a gun shot and saw people running from the bar . Lloyd later
found Mackey lying on the floo r in th e back poolroom.
David Frazier testified that he was i n th e back poolroom
wit h Cynthia McGhee at the time of the shooting . Frazier saw
Mackey holding Smith down on the poo l table and choking him.
He later saw Gross fire a shot from a silver gun and Mackey
fal l to the floor.
Cynthia McGhee stated she saw Mackey choking Smith on th e
pool table and then turned around. When she looke d again, she
saw Gross with a “shiny gun i n hi s hand” and watched as he
pulle d the trigger . (R. 186) . She heard Mackey cal l out that
5 he had been shot before falling to the ground.
Anthony Smith confirmed that prior to the shooting,
Mackey held him down on the pool table by his shirt . Smith
als o stated that during his altercation with Mackey, he
notice d Gross standing over to the righ t but di d no t see Gross
wit h a gun and could not see who fired the shot that struck
and killed Mackey.
Thomas McClain testified that he was Gross’s cellmate
followin g his arrest . McClain said that Gross confessed to
him that he had accidentally shot Mackey. According to
McClain, Gross and Mackey were arguing with Smith, and Gross
accidentall y shot the wrong person.
The Defense presented testimony by Dwight Malone, who
state d that he saw Mackey and Smith arguing near the pool
table , but di d not see Gross with a gun and could not see the
individua l who fired the shot killing Mackey.
Based on the foregoing, the State presented sufficient
evidence from which the jury could have reasonably concluded
that Gross was guilty of intentional murder. The State
presented evidence indicating that Gross fired a pisto l with
the intent to kil l someone and kille d Mackey. Gross’s intent
to cause the death of someone supplied the inten t necessary to
sustain his convictio n for the intentional murder of Mackey.
See ß 13A-6-2(a)(1), Ala. Code 1975 (A person is guilt y of
murder i f “[w]it h intent to cause the death of another person,
[the defendant] causes the death of that person or of another
person.”). Furthermore, “[t]he weight and probativ e valu e to
be given to the evidence, the credibilit y of the witnesses,
the resolution of conflictin g testimony, and inferences to be
drawn from the evidence are for the jury.” Smith v. State,
698 So. 2d 189, 214 (Ala. Crim. App. 1996), aff’d, 698 So. 2d
219 (Ala. 1997). Therefore, Gross’s argument is without
merit.
II .
Gross also argues that the circui t court erred i n denying
hi s requested jury instruction on provocation manslaughter.
Gross, however, did not first present this argument to the
circui t court. Therefore, he di d no t preserve this issue fo r
6 appellat e review. See Harris v. State, 563 So. 2d 9, 11 (Ala .
Crim. App. 1989) (defendant must first obtain an adverse
rulin g in order to preserve an issue for appellat e review);
Jordan v. State, 574 So. 2d 1024, 1025 (Ala. Crim. App. 1990)
(claim was not preserved for appellat e review where defendant
di d not firs t present his argument to the tria l court).
However, even i f Gross had preserved his argument for
appeal, i t i s stil l without merit.
“‘A trial court has broad discretion i n formulating
it s jury instructions, providing they are an
accurate reflection of the law and facts of the
case. Coon v. State, 494 So. 2d 184 (Ala. Cr . App.
1986). When requested charges are eithe r fairl y and
substantiall y covered by the trial judge’s oral
charge or are confusing, misleading, ungrammatical,
not predicated on a consideration of the evidence,
argumentative, abstract, or a misstatement of the
law, the trial judge may properly refuse to give
such charges. Ex parte Wilhite, 485 So. 2d 787
(Ala. 1986).’
“Ward v. State, 610 So. 2d 1190, 1194 (Ala. Cr. App.
1992).”
Hemphill v. State, 669 So. 2d 1020 , 1021 (Ala. Crim . App.
1995) (emphasis omitted).
In Yeomans v. State, this Court reaffirmed that “[t]he
failur e to give a proposed jury instruction constitutes
reversibl e error only i f suc h instructio n (1) was correct, (2)
was not substantially covere d by the court’s charge, and (3)
concerned a poin t in th e tria l which was so important that the
failur e to give the instruction seriously impaired the
defendant’s ability to defend himself.” 898 So. 2d 878, 899
(Ala. Crim. App. 2004) (internal citations and quotations
omitted). There is nothing in the record to indicate that
Mackey did anything to provoke Gross. Further, multiple
witnesses testified that i t was Smith and Mackey, rather than
Gross, who were involved in an altercatio n around the time of
the shooting. Therefore, Gross was the initia l aggressor.
Section 13A-6-3(a)(2), Ala. Code 1975 states that a person i s
guilt y of provocation manslaughter if :
7 “He causes the death of another person under
circumstances that would constitute murder under
Section 13A-6-2[, Ala. Code 1975]; except, that he
causes the death due to a sudden heat of passion
caused by provocation recognize d by law, and before
a reasonable time for th e passion to cool and fo r
reason to reassert itself.”
Additionally , we recently stated:
“This Court has recognized that ‘ß 13A-6-3(a)(2)[,
Ala . Code 1975,] is designed to cover those
situation s where the jury does not believe a
defendant is guilt y of murder but also does not
believ e the killing was totally justified by
self-defense. ‘ Shultz v. State, 480 So. 2d 73, 76
(Ala. Crim. App. 1985).
“Alabama courts have, in fact , recognized
three legal provocations sufficient to
reduce murder to manslaughter : (1) when the
accused witnesses hi s o r her spouse in th e
act of adultery; (2) when the accused i s
assaulte d or face d wit h an imminent assault
on himself; and (3) when the accused
witnesses an assault on a family member or
clos e relative.”
“Rogers v. State, 819 So. 2d 643, 662 (Ala. Crim.
App. 2 0 01). “
Lane v. State, 38 So. 3d 126, 131 (Ala. Crim. App. 200 9) .
However, the Alabama Supreme Court has held provocation
manslaughter cannot be found where the provocation was not
from the victim . Carter v. State, 843 So. 2d 812, 816 (Ala .
2002). In thi s case, multiple witnesses testifie d that Gross
was the aggresso r and that Mackey had done nothing to provoke
him at th e tim e of the shooting . Therefore, the circui t court
di d not abuse it s discretio n i n refusin g to charge the jur y on
provocatio n manslaughter.
Based on the foregoing, the circui t court’s judgment i s
affirmed .
8 AFFIRMED.
Welch, P.J., and Kellum, Burke, and Joiner, JJ., concur.
9
