Tubbs v. State, 52732

• Decision Date: 12 August 1981
• Docket Number: No. 52732,52732
• Citation: 402 So.2d 830
• Parties: Eddie Jerome TUBBS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 830

402 So.2d 830

Eddie Jerome TUBBS v. STATE of Mississippi.

No. 52732.

Supreme Court of Mississippi.

Aug. 12, 1981.

J. Richard Barry, Thomas L. Webb, Bourdeaux & Jones, Meridian, for appellant.

Bill Allain, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and SUGG and BROOM, JJ.

SUGG, Justice, for the Court:

Eddie Jerome Tubbs was convicted in the Circuit Court of Lauderdale County for the capital murder of Hubert Marshall Brand and sentenced to life imprisonment. One of the nine assignments of error is that the verdict of the jury was against the overwhelming weight of the evidence.

On September 17, 1979, Brand's body was found in a trash dump about eight miles west of Meridian, Mississippi. Brand had been severely beaten on his head, neck, shoulders and abdomen. An autopsy was performed on September 18 by Dr. Gonzales, a forensic pathologist. His examination revealed fractured bones in the head, neck and chest, contusion and bruising of the anterior portion of the heart, and hemorrhaging in the abdominal area due to a laceration of the liver. The doctor also found evidence of manual strangulation. The doctor testified that either the head trauma, the chest trauma, abdominal trauma or the manual strangulation could have singly caused the death of Brand. The autopsy was performed at about 8:00 p. m. on September 18 and in the opinion of the pathologist, Brand's death occurred approximately 72 hours earlier.

Brand was an automobile salesman, employed by Nelson Hall Chevrolet in Meridian. He was seen leaving his place of employment between 5:00 and 5:30 p. m. on September 15 in a green Chevrolet Impala bearing a dealer tag. At approximately 5:30 p. m., two witnesses saw him drive into the parking lot of a Burger Chef Restaurant accompanied by a young black male who ordered some food. Both witnesses identified the black male as Tubbs and stated that, as the car left the parking lot, they observed that it had a dealer's tag on it.

Tubbs returned to his home in Meridian where he lived with Lynda Arrington, Leon Harrison and Angie McCoy during the early evening hours of September 15. Harrison and McCoy both stated that Tubbs had in his possession a brown three-fold wallet, some Nelson Hall business cards, a drivers license, a silver digital watch and a small amount of cash when he arrived at his home. Both witnesses heard the defendant say he had beaten a man and taken his car somewhere outside Meridian and they saw Tubbs burning something on the back steps of their home later. The following day McCoy found the remains of what appeared to be a wallet and some Nelson Hall business cards when she swept the back steps. When Tubbs left his home the night of September 15, Harrison and McCoy both stated he departed in a green Chevrolet Impala bearing a dealer's tag. Brand's wife testified her husband owned a brown three-fold wallet and a silver digital watch.

Tubbs returned home early Sunday morning, September 16. His girlfriend, Lynda Arrington, noticed an unfamiliar automobile in front of the house and asked Tubbs who was driving the car. He replied that he was. Later in the morning he drove her to work in the same automobile, a green Chevrolet Impala bearing a dealer's tag, and she saw a plaid jacket on the floorboard of the automobile when she entered it. Three other witnesses said they saw Tubbs late Sunday night driving a light colored Chevrolet Impala bearing a dealer tag.

The following morning, September 17, Lynda Arrington awoke to find Tubbs sitting on the couch looking at some check books which had the initials H and B on them. Before leaving, Tubbs put the check books in a paper bag and placed them under the couch. After he left, Arrington heard on a television newscast that Hubert Brand was missing and had been wearing a plaid jacket at the time of his disappearance. Remembering the plaid jacket which she saw in the automobile, she got the check books from underneath the couch and found the name of Hubert Brand on them. When Tubbs returned she confronted him with these facts, a heated argument followed, and Tubbs left the house.

Brand's automobile was found on the morning of September 19 directly across the street from the home of Tubbs, Arrington, Harrison and McCoy. One latent fingerprint was lifted from the inside of the door jamb where the right rear door closes on the post of the automobile, and was identified as being the fingerprint of Tubbs. Other fingerprints were found on the automobile but were not identified.

The following handwritten note was introduced in evidence:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The note was discovered under rather unusual circumstances. When the officers found the body of Brand on September 17, Adolph Harris was slumped over in the front seat of his automobile at the trash dump. The rear of Harris' automobile was about ten feet from Brand's body. Harris told the officers that he backed his car into the area, and while standing at the rear of his automobile saw a pair of glasses on the ground. He picked the glasses up, placed them in the trunk of his automobile and it was subsequently determined that the glasses belonged to Brand. Harris was arrested and charged with the murder of Brand. On September 21 a habeas corpus hearing was held in the courthouse and about the noon hour a South Central Bell envelope was found on the steps of the Lauderdale County Courthouse. The envelope and its contents were carried to the Sheriff's office and contained the note that was introduced in evidence along with other items belonging to Brand. The envelope and its contents were introduced in evidence. ¹

The handwriting expert from the Mississippi Crime Laboratory testified that, in his opinion, both the note and the handwriting on the South Central Bell envelope were in the handwriting of Tubbs. He testified he reached this conclusion by comparing the note with known specimens of Tubbs' handwriting which consisted of a statement written by Tubbs to his parole officer and two notes written by Tubbs while he was in jail. Tubbs was ordered by the court to furnish the state a handwriting exemplar. He refused to comply with this order, so it was necessary for the state to introduce and rely on the three known exemplars of Tubbs' handwriting.

The defendant did not testify but presented three witnesses who said they saw him at the Hole in the Wall Club in Meridian on the night of the murder. One witness arrived at the Club about 7:30, another about 7:45 and another about 8:00, and they stated that they were in the presence of the defendant at the club from the time they arrived until about midnight. He also offered Larry Covert, a Meridian policeman, as a witness. Covert testified that he saw Brand alone in a light green Chevrolet that was a "dealer car" between 5:00 and 8:00 p. m. on September 15. He observed Brand leave his gasoline service station and proceed west on Eighth Street. He stated that he gave the police a statement that he saw Mr. Brand between 7:30 and 8:00 p. m. and on cross-examination, said he told the secretary at the detective bureau he saw Mr. Brand between 7:30 and 8:00 because she said she needed a time.

Defendant contends that a verdict of the jury was against the overwhelming weight of the evidence. Tubbs' contention on this point may be summarized as follows: (1) no one saw him kill Hubert Marshall Brand; (2) he was not seen at the place where Brand's body was discovered; (3) the evidence did not rule out the possibility that the fingerprints found on the right rear door post of Brand's car were put there on Sunday, September 16, one day after Brand's death; (4) there was no evidence other than the questionable testimony of Harrison and McCoy that he had killed anyone; (5) there was no evidence presented that would prove he was guilty of robbery other than the fact that he was in the victim's car and had in his possession some of the victim's business cards and checks; (6) that a police officer saw Brand alive after the time his alibi witness testified they were with Tubbs at a club in Meridian (7) a white male, Charles Warren, could not be found to testify at the trial. (Warren had led law enforcement officers to the scene where the body was found where Warren and the victim had previously gone to have homosexual relations. Tubbs argues that Warren's absence, combined with the fact that Brand had been robbed before at the place where his body was found, should have created some doubt in the minds of the jury.) (8) All of the above facts, coupled with law enforcement officers finding Adolph Harris slumped in the seat of his car with the lights out, ten feet from the victim's body, with the victim's glasses in the trunk of his car, with Harris claiming he was reading a dog racing form and preparing to go treasure hunting, points the finger of guilt in other directions.

Tubbs then argues that, assuming everything testified by the state's witnesses is true, there still remains a reasonable hypothesis that some person other than he killed Brand; therefore, the verdict of the jury is against the overwhelming weight of the credible evidence and the case should be reversed.

The evidence for the state may be summarized as follows: (1) Hubert Brand left his place of employment between 5:00 and 5:30 p. m. on September 15 in a light green Chevrolet Impala bearing a dealer's tag; (2) Tubbs and Brand were seen at a Burger Chef together shortly thereafter and drove off in an automobile bearing a dealer's tag; (3) Tubbs returned to his house about 7:00 to 7:30 p. m. on September 15 and was seen by Harrison and McCoy, who lived in the house, in possession of a brown trifold wallet, Nelson Hall Chevrolet business cards, a drivers license, a silver digital watch and a small amount of currency; (4) Brand was a salesman for Nelson Hall Chevrolet, owned a brown trifold...