# McMillian v. State

> Court of Criminal Appeals of Alabama · February 5, 2010 · 58 So. 3d 849

URL: https://www.frixlaw.com/law-library/cases/4863885

## Case

- **Full name:** Oscar Levell McMillian v. State of Alabama.
- **Court:** Court of Criminal Appeals of Alabama
- **Decided:** February 5, 2010
- **Citations:** 58 So. 3d 849; 67 A.L.R. 6th 651; 2010 Ala. Crim. App. LEXIS 4; 2010 WL 415240
- **Precedential status:** Published
- **Opinion:** Concurrence by Wise
- **Judges:** Welch, Windom, Main, Wise, Kellum
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4863885

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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AFFIRMED BY UNPUBLISHED MEMORANDUM.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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4863885. Public record. Not legal advice.