reversing conviction for first-degree domestic violence because of insufficient evidence that' deadly weapon was involved and remanding case with instructions to enter conviction on the lesser-included offense of second-degree domestic violence
How later courts described this case
- reversing conviction for first-degree domestic violence because of insufficient evidence that' deadly weapon was involved and remanding case with instructions to enter conviction on the lesser-included offense of second-degree domestic violence
- noting that any comment that is fairly susceptible to interpretation as a comment on a defendant’s right to remain silent will be treated as such
- conviction reversed and judgment entered on a lesser-included offense
Written by the judges who cited it.
The opinion
WISE, Presiding Judge,
concurring specially.
I agree with the majority that, based on the Alabama Supreme Court’s holding in *854 Ex parte Cobb, 703 So.2d 871, 877 (Ala.1996) (“the use of fists or other body parts cannot constitute the use of a ‘deadly weapon’ or ‘dangerous instrument’ ”), McMillian’s conviction for first-degree domestic violence must be reversed. However, perpetrators often use their body parts to injure their victims. Although those body parts would not be considered “deadly weapons” or “dangerous instruments” under the holding in Ex parte Cobb, they certainly can be, and frequently are, used to inflict serious physical injuries. Therefore, I write specially to urge the Alabama Supreme Court to reconsider its holding in Ex parte Cobb that the use of body parts cannot constitute the use of a “deadly weapon” or a. “dangerous instrument.” See also Grider v. State, 766 So.2d 189, 198 (Ala.Crim.App.1999) (Baschab, J., concurring specially); Harris v. State, 717 So.2d 868, 868 (Ala.Crim.App.1997) (Long, P.J., concurring specially).
KELLUM, J., concurs.
On Return to Remand
WELCH, Judge.
AFFIRMED BY UNPUBLISHED MEMORANDUM.
WINDOM, KELLUM, and MAIN, JJ., concur. WISE, P.J., concurs specially, with opinion.