Hubbard v. State

• Decision Date: 13 May 1986
• Docket Number: 6 Div. 7
• Parties: J.B. HUBBARD, alias Billy Hubbard, alias Barney Hubbard v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1204

500 So.2d 1204

J.B. HUBBARD, alias Billy Hubbard, alias Barney Hubbard v. STATE.

6 Div. 7.

Court of Criminal Appeals of Alabama.

May 13, 1986.

Rehearing Denied June 10, 1986.

Joseph G. Pierce of Drake, Knowles & Pierce and C. Michael Stilson of Thompson & Stilson, Tuscaloosa, for appellant.

Charles A. Graddick, Atty. Gen., and Richard L. Owens and William D. Little, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

J.B. Hubbard, alias Billy Hubbard, alias Barney Hubbard, appellant, was first indicted February 18, 1977, in a two-count indictment under the Alabama Death Penalty Act relating to "[a]ny murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime." Code of Alabama 1975, § 13-11-2(a)(13). Count One charged first degree murder with the prior conviction, and Count Two charged second degree murder with the prior conviction. Omitting its formal parts, the indictment read as follows:

"I. The Grand Jury of said County charge that before the finding of this Indictment J.B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought, killed Lillian Montgomery, on to-wit: January 10, 1977, by shooting her with a pistol, and the Grand Jury further charge that at the time said killing was perpetrated, the said J.B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD had been convicted of murder in the second degree in the preceding twenty (20) years, on to-wit: October 10, 1957.

"II. The Grand Jury of said County further charge that before the finding of this Indictment J.B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought killed Lillian Montgomery, on to-wit: January 10, 1977, by shooting her with a pistol, but without premeditation or deliberation, and the Grand Jury further charge that at the time said killing was perpetrated, the said J.B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD had been convicted of murder in the second degree in the preceding twenty (20) years, on to-wit: October 10, 1957."

Appellant was duly arraigned and he pleaded not guilty. A jury found him "guilty of murder in the first degree with aggravating circumstances as charged in Count One of the indictment and fix his punishment at death." After a separate sentencing hearing, the trial court accepted the jury's recommendation and sentenced appellant to death. On appeal this court remanded the case to the trial court with instructions that the lower court's order be extended to include findings of fact from the trial and the mitigating circumstances, if any, considered as required by statute. After a proper return to remand was filed, we affirmed the judgment of conviction. Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.1979). Affirmance by the supreme court of Alabama followed. Hubbard v. State, 382 So.2d 597 (Ala.1980). Subsequently, the supreme court reversed the judgment of this court and remanded the cause to this court on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981). Hubbard v. State, 405 So.2d 695 (Ala.1981). Pursuant to the order of the supreme court, we reversed and remanded the case to the trial court on October 6, 1981. Hubbard v. State, 405 So.2d 695 (Ala.Cr.App.1981).

The instant appeal is from appellant's second trial on the same two-count indictment, wherein he was convicted again for the same capital offense. § 13-11-2(a)(13). ¹ The second trial was conducted in accordance with the bifurcated procedures outlined in Beck v. State, supra. In the first trial and on appeal, appellant was represented by the public defender of Tuscaloosa County, and on his second trial, he was represented by two appointed attorneys who are experienced and able members of the bar. The same two appointed attorneys represent him on this appeal. As in the first trial, the jury found appellant guilty of "murder in the first degree with aggravating circumstances as charged in Count One of the indictment," and, after a separate sentencing hearing, fixed his punishment at death. The trial court then held a second sentencing hearing on aggravating and mitigating circumstances, and found the existence of three aggravating circumstances and no mitigating circumstances. The trial court weighed the aggravating circumstances, while noting the absence of mitigating circumstances, and on May 14, 1982, sentenced appellant to death, thereby accepting the death penalty as recommended by the jury. It is from this second conviction and sentence that appellant now prosecutes this appeal.

As alleged in his capital indictment, appellant was previously convicted of murder in the second degree in Tuscaloosa County on October 10, 1957, for the killing of Carl Dockery, and was sentenced to fifty years in the penitentiary. Receiving credit for "good time," he completed serving his sentence, and was released from prison in October 1976. Shortly after his release, he began living with the victim in the instant case, Lillian Montgomery, at her house and adjoining store near Tuscaloosa.

On January 10, 1977, at approximately 8:15 a.m., an ambulance, manned by attendants David Freeman and Ricky Lee, was dispatched to the combination residence-store of the victim, Lillian Montgomery, as a result of a reported "suicide." Appellant had called the telephone operator for assistance; the operator had called the police at appellant's request; and the police called for the ambulance. Upon the arrival of the ambulance at the scene, some ten minutes later, the attendants saw appellant in the open doorway motioning for them to come inside. The attendants entered the residence and found the body of Lillian Montgomery lying in a pool of blood on the kitchen floor. Appellant stated to David Freeman, when asked if he had moved anything, that he had "carried the gun upstairs," whereupon the attendants and appellant went outside to the ambulance, locking the door behind them.

About 8:53 a.m., Tuscaloosa Police Officers Jack Manley and Charles Stephens arrived at the scene. Officer Manley was informed that the residence was locked, at which time he was given the door key by appellant. Officers Manley and Stephens entered the kitchen and saw that Lillian Montgomery was dead and had apparently been shot more than once. Upon seeing the condition of the body, the officers went back to their patrol car and radioed for a member of the homicide unit and the coroner to come to the scene.

While waiting on the homicide detective and the coroner to arrive, Officer Manley asked appellant what happened. Appellant told Manley that he and Ms. Montgomery had been arguing the night before and that the argument had continued that morning. He stated that about 7:00 a.m., Ms. Montgomery went downstairs and that he heard two shots. Manley asked appellant the whereabouts of the gun, and appellant stated that the gun was on his person. Manley then searched appellant's person and found a .38 caliber pistol, a partial box of .38 caliber ammunition, and a half-pint bottle containing whiskey. At this point, Manley gave appellant Miranda warnings by reading from a card and placed him in the patrol car. Appellant had obviously been drinking, but the witnesses who observed him testified that he was not intoxicated.

Sergeant Dempsey Marcum, the homicide detective, arrived at the scene at approximately 9:15 a.m. While sitting in the patrol car, appellant showed Officer Stephens his billfold, which contained an undetermined amount of money, and stated, "I'm not a bum."

Manley gave Marcum the items he had seized from appellant. Marcum checked the gun and found it to be fully loaded. Marcum entered the residence, with coroner Earl Mitchell and state toxicologist Jim Britton, who in the meantime had arrived at the scene. Upon entry, Marcum observed the body and noted that the kitchen trash can had been overturned and garbage scattered. The victim was clutching a partial set of dentures in her right hand, and a portion of a denture which appeared to be broken lay on the floor near the body. The victim was lying on the kitchen floor in a pool of blood. One mutilated, spent bullet, was found on the kitchen stove, and two spent .38 caliber shell casings were found in a wastepaper basket in the upstairs bedroom.

An autopsy performed later on the same day disclosed that the victim had been shot three times. Upon learning this, Marcum returned to the victim's residence and recovered a third .38 caliber spent shell casing from the wastepaper basket in the upstairs bedroom. The autopsy revealed that one bullet entered the left shoulder of the victim, passing from the victim's left to her right at an angle of approximately fifty degrees from the front plane and approximately twenty degrees downward, exiting behind the left shoulder. Another bullet entered the victim's mouth, passing to her right at an angle of thirty-five degrees from the front plane and upward at an angle of two degrees, exiting beneath her right ear. This shot furrowed or cut the victim's tongue, and shattered her jaw, as well as one of her dentures, leaving five or six pieces of the denture lodged in her throat. It damaged large blood vessels and caused severe bleeding of from two to three pints of blood. The pathologist testified that in his opinion, within a reasonable medical certainty, the victim would have been unable to articulate or speak after this wound to the mouth. He stated, as follows: "I don't think anyone would be able to articulate words with the injury that I have described.... She could not be able to talk so that she could be understood." A third bullet entered...