The opinion
The majority in this case affirms Antwan Demetrius Harris's sentences for throwing a dangerous missile into an occupied vehicle and for second-degree assault, violations of §§ 32-5-11 and 13A-6-21 (a)(2), Ala. Code 1975, respectively, finding that the piece of a concrete block Harris threw into Lora Chatmon's vehicle was a deadly weapon, and, therefore, that his sentence for each conviction was properly enhanced under § 13A-5-6 (a)(5), Ala. Code 1975. Harris claims that his *Page 1175
sentence was improperly enhanced under § 13A-5-6 (a)(5), Ala. Code 1975, because, he argues, the concrete rock he used to shatter the car window and injure Lora Chatmon was not a "deadly weapon" as that term is defined by the relevant statute. I agree with Harris. Therefore, I dissent.
In Ex parte Cobb , 703 So.2d 871 (Ala. 1996), the Alabama Supreme Court stated:
"The definition states that a deadly weapon is a `firearm or anything manifestly designed, made or adapted for the purposes of inflicting death or serious physical injury.' [The statute, § 13A-1-2 (7), Ala. Code 1975,] then lists 12 specific objects that are `designed as weapons and are easily and readily susceptible of producing death or serious injury.' Commentary, Ala. Code 1975, § 13A-1-2 (11).[ 3 ] Included in that list are various types of firearms, knives, and objects designed to deliver blunt force trauma. Applying the rule of ejusdem generis to § 13A-1-2 (11), we conclude that the legislature intended to include as deadly weapons only things that are similar to the listed weapons. Only objects that are `designed, made or adapted for the purposes of inflicting death or serious physical injury' fit the definition of `deadly weapon.'"
703 So.2d at 875-76 .
The majority supports its holding by noting that the Alabama Supreme Court, in Cobb , after stating that "the legislature intended to include as deadly weapons only things that are similar to the listed weapons," Id . At 876 also stated that any object designed, made or adapted for purposes of inflicting death or serious physical injury is a deadly weapon. The majority also states that "this court has repeatedly held that certain items not specifically listed in § 13A-1-2 (7), Ala. Code 1975, constituted deadly weapons based on the manner in which they were used." 873 So.2d at 1172-73. While this Court has held that many items not specifically listed in § 13A-1-2 (7), Ala. Code 1975, constitute deadly weapons, existing caselaw indicates that only items similar to the listed weapons and items used in a manner similar to the weapons listed in the definition can be considered to be deadly weapons. In Jones v. State , 523 So.2d 518 (Ala.Crim.App. 1987), this Court held that a tire tool used to strike the victim in the head was a deadly weapon. This Court has also held that a baseball bat, when used to strike the victim, was a deadly weapon. See Hill v. State , 516 So.2d 876 (Ala.Crim.App. 1987). In Harris v. State , 705 So.2d 542 , 548 (Ala.Crim.App. 1997), this Court held that a glass bottle may be a deadly weapon because "[t]he manner in which the appellant used the bottle was sufficiently similar to the manner in which one would use a billy club or bludgeon to qualify as a deadly weapon." Thus, when an object, other than a knife of gun, is used in a manner similar to a manner in which one uses a billy club or bludgeon, we have held that the object was a deadly weapon.
In only a few cases has this Court been presented with a question whether a thrown object constitutes a deadly weapon. In Buchanan v. State , 602 So.2d 459 , 460 (Ala.Crim.App. 1992), this Court held that a flashlight thrown by the defendant was not a "dangerous weapon" within the second-degree assault statute because it was not used in "so-called hand-to-hand combat and was not used in a beating in close contact with the victim." Therefore, it *Page 1176
appears that when an object was not used in a manner similar to the weapons listed in the definition, this Court has concluded that the object was not a deadly weapon.
While a rock may be used to bludgeon someone, the rock was not used in such a manner in this case. Harris threw the rock at the windshield of an automobile. Harris used the rock in a manner similar to the way the flashlight was used in Buchanan . Thus, it is my opinion that the rock, as it was used in this case, did not constitute a deadly weapon and that the trial court erred when it applied the § 13A-5-6 (a)(5), Ala. Code 1975, sentence enhancement to both convictions. 4
Therefore, I dissent from the majority's decision to affirm Harris's sentences.
3 Section 13A-1-2 was amended effective September 26, 2001. The definition of "deadly weapon" is now found in subsection (7).
4 In a case presenting other facts, such as a rock of this size being thrown at a moving vehicle from a highway overpass, further analysis would be required, and I would perhaps reach a different result. However, those facts are not before us today.