ELECTRONICALLY FILED

2/19/2015 9:46 PM
43-CC-2012-000744.00
CIRCUIT COURT OF
LEE COUNTY, ALABAMA
MARY B. ROBERSON, CLERK

IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA

CRIMINAL DIVISION
STATE OF ALABAMA,

Plaintiff,

v.

* Case No. CC-12-744.00 744.04

DESMONTE DESMONTEZ LEONARD, *
Defendant.

DEFENDANTS MOTION FOR NEW TRIAL

COMES NOW, Defendant Desmonte Leonard, by counsel, and moves
for a new trial pursuant to Ala.R.Crim.P. 24.1(c).

Rule 24.1(c)(2) states:

"The court may grant a new trial: (1) For the reason that the verdict is
contrary to law or to the weight of the evidence; or (2) If for any other
reason the defendant has not received a fair and impartial trial." In support
thereof, Mr. Leonard offers the following:
I.
On October 9, 2014, Mr. Leonard was convicted by a jury of capital
murder (CC-12-744.00). The capital conviction was pursuant to 13A-540(a)(10), Ala. Code (Murder wherein two or more persons are murdered
by the defendant by one act or pursuant to one scheme or course of
conduct.). The jury by a vote of 7-5 returned a sentence recommendation
for life in prison without the possibility for parole.

The jury also convicted Leonard of attempted murder (CC-12744.01), assault in the first degree (CC-12-744.03), assault in the second
degree (CC-12-744.04), and assault in the second degree (CC-12-744.05).
Mr. Leonard was found not guilty by the jury of one count of attempted
murder (CC-12-744.02).
A sentencing hearing was held on January 20, 2015. Upon conclusion
of the hearing the Court announced that it would follow the recommendation
of the jury and sentenced Leonard to life without parole for the capital
conviction. The Court sentenced Leonard to life in prison for the attempted
murder conviction, twenty years for the assault I conviction, and ten years
for each assault II conviction.
On February 17, 2015, the Court issued a final order of sentence of
life without parole for the capital offense.
II.
The evidence considered in the light most favorable to the State was
that DeAngelo Benton became irate at Leonard and his two friends,
Christopher Trawick and Jeremy Thomas, at a pool party on June 9, 2012,
which was being held at the University Heights Apartments in Auburn,
Alabama. Leonard and two friends had traveled to Auburn to attend the
party after being invited thereby the sister of a party host.

Benton engaged in a verbal altercation with Leonard and his friends.

Several of Leonards Auburn teammates attempted to calm him down by
escorting him away from the club house to a corridor/breeze way in front of
the apartment office.
While this was going on, two other individuals, Turqurious Vines and
Demario Pitts initiated a verbal altercation and fight with Leonard and his
two friends. This altercation was away from the corridor where Benton was
being restrained. The altercation as testified to by numerous crowd
spectators was outside the corridor area on the grass closest to the vehicles
parked perpendicular in front of the office area of the complex.
Demario Pitts hit Traywick in the mouth with a beer bottle busting his
teeth. Leonard was knocked to the ground and people were hitting and
stomping on him. Leonard reacted by discharging a firearm to defend
himself from the attackers. Leonard testified he was in fear of his life, and
that he fired from the ground position to defend himself. This angle of shot
was corroborated by the testimony of the medical examiner and other crime
scene evidence. The testimony of a psychologist confirmed that Leonard
had a real fear of death.
A fair interpretation of the trial evidence was that the deaths and
injuries in the corridor by the office resulted from collateral damage of

Leonards discharge of the firearm in defense of himself against the brutal

attack against him and his friends by Vines, Pitts, and others, all of which
was instigated by Benton.
There was no evidence that Leonard went to the party with the intent
to harm anyone or that the killings and injuries occurred as the result of
some illegal act on the part of Leonard.
III.
Mr. Leonard contends a new trial should be granted for failure of the
Court to grant his request to instruct the jury on reckless manslaughter.
Reckless manslaughter is defined as follows: A person commits the
crime of manslaughter if: (1) He recklessly causes the death of another
person. Ala. Code, 13A-6-3(a)(1)
In Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986) it was
stated that:
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. United States v. PadillaMartinez, 762
F.2d 942 (11th Cir.1985). However, a defendant is entitled to
have the court instruct the jury on his defense theory,
assuming that the theory has foundation in the evidence and
legal support. United States v. Conroy, 589 F.2d 1258, 1273
(5th Cir.1979). United States v. Terebecki, 692 F.2d 1345,
1351 (11th Cir.1982). In order to determine whether the
evidence is sufficient to necessitate an instruction and allow the
jury to consider the defense, we must accept the testimony
most favorably to the defendant. (Citations omitted.) United

States v. Lewis, 592 F.2d 1282, 1286 (5th Cir.1979).

A fair interpretation of the trial evidence was that the deaths and
injuries in the corridor by the office resulted from collateral damage of
Leonards discharge of the firearm in defense of himself against the brutal
attack against him and his friends by Vines, Pitts, and others, all of which
was instigated by Benton. Mr. Leonard was found not guilty of the
attempted murder of Vines. It was undisputed that Mr. Pitts was an initiator
and aggressor of the events that unfolded. Since there was no instruction on
reckless manslaughter, the jury was unable to consider that the deaths of Mr.
Phillips and Mr. Christian was committed recklessly by Leonard while
defending himself against Pitts. It the jury had so found the capital murder
charge would not stand since the statute requires the intentional death of at
least two persons arising out of the same act.
IV.
Mr. Leonard contends the argument to the jury by the prosecution that
Mr. Leonard was not entitled to his claim of self defense because he was
engaged in illegal activity was error. The law on this area was not clear at
the time of the trial. Subsequent to the trial the case of Diggs v. State, __So
3d __ (Ala. Crim. App. 2014)(Crim. App. No. CR-13-0746, November 21,
2014) was decided. Copy attached as exhibit A.

The trial court in Diggs denied a requested instruction on self defense

because Diggs was a convicted felon and did not have a pistol permit. From
the Opinion:
Diggs contends that the trial court committed reversible error
when it refused to instruct the jury on self-defense.
*****
Diggs further testified that he had convictions for nonviolent
felonies and that, as a convicted felon, he was not allowed to
carry a gun and that, for that reason, he did not have a permit to
carry a gun.
See pages 2 and 8 of the Opinion. The appellate court reversed because it
held that:
Diggs's possession of a firearm before his need to defend his
life may have been an event in violation of the law. However,
his possession of a firearm was justified at the moment it
became necessary for his self-defense.
See page 14 of the Opinion.
Therefore, Mr. Leonard should receive a new trial so the jury is made
clear that he was not engaged in illegal activity because he did not have a
pistol permit.
V.
Mr. Leonard contends that portions of the jury selection process
deprived him of a fair trial and to due process as required by the United
States Constitution. Mr. Leonard re-alleges the arguments made at jury
selection as if fully set out herein.

Respectfully submitted this the 19th day of February, 2015.

s/Jeffery C. Duffey
Jeffery C. Duffey (DUF003)
Attorney for Defendant
Law Office of:
Jeffery C. Duffey
600 South McDonough Street
Montgomery, AL 36104
Telephone: 334-834-4100
Fax: 334-834-4101
Email: Jcduffey@aol.com
Susan G. James
Law Office of
Susan G. James & Associates
600 S. McDonough St.
Montgomery, AL 36104
(334) 269-3330

CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing document
upon the Lee County District Attorney via the Alafile system on this 19th day
of February, 2015.
s/Jeffery C. Duffey
Jeffery C. Duffey