Marco Antonio Perez v. State of Alabama

── Marco Antonio Perez v. State of Alabama ── Court: Court of Criminal Appeals of Alabama Date: May 01, 2026 Author: J. Elizabeth Kellum Category: General Rel: May 1, 2026 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter. Alabama Court of Criminal Appeals OCTOBER TERM, 2025-2026 _________________________ CR-2024-0206 _________________________ Marco Antonio Perez v. State of Alabama Appeal from Mobile Circuit Court (CC-23-2829) KELLUM, Judge. The appellant, Marco Antonio Perez, was convicted of murdering Sean Tuder, an offense defined as capital by § 13A-5-40(a)(5), Ala. Code 1975, because, at the time he was murdered, Tuder was working as a police officer with the Mobile Police Department. The jury unanimously CR-2024-0206 found that the murder "was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody," an aggravating circumstance defined in § 13A-5-49(5), Ala. Code 1975. (C. 156.) By a vote of 11 to 1, the jury sentenced Perez to death. This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-53, Ala. Code 1975. Perez was charged in a six-count indictment with murdering Off. Tuder, a violation of § 13A-5-40(a)(5), Ala. Code 1975; stealing a 2013 Honda Accord, a violation of § 13A-8-17, Ala. Code 1975; stealing a 2009 Lincoln MKX, a violation of § 13A-8-3(b), Ala. Code 1975; stealing a 2011 GMC 1500 truck, a violation of § 13A-8-3(b), Ala. Code 1975; breaking and entering into a 2016 Ford F-150 with the intent to commit a theft, a violation of §13A-8-11(b), Ala. Code 1975; and stealing a Smith and Wesson .40 caliber pistol from the Ford F-150, a violation of § 13A-8-4(c), Ala. Code 1975. (C. 6-7.)1 The Mobile Circuit Court severed the 1Perez was originally indicted in August 2019. (Suppl. C. 104-105.) He was reindicted in February 2024. (C. 6-7.) 2 CR-2024-0206 noncapital charges from the capital-murder charge.2 At the time that Perez shot Off. Tuder, he was 19 years old and on probation for youthful offender ("YO") adjudications. At the time of the shooting, Perez was also subject to federal pretrial-release conditions as a result of a charge for possessing a stolen firearm that he had pending in federal court. Before trial, Perez moved for a pretrial evidentiary hearing on his motion to dismiss because, he alleged, he was immune from prosecution pursuant to § 13A-3-23(d), Ala. Code 1975. (Suppl. C. 286.) In the motion, Perez asserted that "he was justified in the shooting … when he acted in self-defense of himself or another, and consequently pursuant to Section 13A-3-23(d) is immune from the prosecution of the allegations set forth in the indictment." (Suppl. C. 286.) After a hearing and briefs, the circuit court denied Perez's motion to dismiss. (Suppl. C. 550-63.) At trial, the State's evidence tended to show that on January 20, 2019, Perez shot and killed Off. Tuder while he was trying to apprehend Perez. Off. Tuder was a member of the Mobile Police Department Gang Unit and one of the "duties of the Gang Unit was to help find or to find 2Numerous filings were made concerning the motion to sever. A hearing was held, and the circuit court entered a lengthy order granting the motion to sever. (Suppl. C. 578-84.) 3 CR-2024-0206 people that