Hubbard v. State

• Decision Date: 13 June 1968
• Docket Number: 6 Div. 457
• Citation: 283 Ala. 183,215 So.2d 261
• Parties: Wade HUBBARD v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 261

215 So.2d 261

283 Ala. 183

Wade HUBBARD v. STATE of Alabama.

6 Div. 457.

Supreme Court of Alabama.

June 13, 1968.

Rehearing Denied July 25, 1968.

On Second Rehearing Oct. 17, 1968.

Further Rehearing Denied Nov. 7, 1968.

Thos. Seay, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Marlin Mooneyham, Asst. Atty. Gen., for the State.

KOHN, Justice.

The defendant was indicted for murder in the first degree on February 16, 1967. He was found guilty and his punishment was fixed at death. On February 24, 1967, judgment was rendered in accordance with the verdict of the jury. A motion for a new trial was overruled on August 28, 1967. The defendant thereafter perfected this appeal.

The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act No. 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.

The facts in this case arise from the strangulation death of a woman on March 26, 1966. The evidence shows that she was killed between 4:00 o'clock and 6:30 o'clock of the evening of the 26th of March. When the body was discovered it was partially nude and the head had been badly beaten. The woman's body was lying in a pool of blood. The defendant was arrested at his home at around 10:30 on this same night. The detective who arrested him said that when he saw the defendant at his home that night, the defend had scratches on his body, blood on his belt and on his blue jeans, and that he had no shirt on. After he was arrested, he was taken to the City Hall and placed in the 'robbery room,' this being around 11:00 o'clock at night. Several law enforcement officers were in and out of the presence of defendant during such time. One of these officers testified that he questioned the defendant during this time. He also testified that before he questioned him, he warned the defendant that he had the right to remain silent, and that if he made a statement it might be used against him. He also testified that he told the defendant that there was a telephone he could use if he wished to call an attorney, and if the defendant wanted, he would make the call for him. After this, the defendant made some incriminating statements. However, they were not offered in evidence and, therefore, there is no question raised on this appeal as to their admissibility.

At approximately 12:30 o'clock, some one and one-half hours after the defendant had been in custody, he was required to stand on a piece of newspaper and remove his clothing. There were several law enforcement officers present at this time, as well as the State Toxicologist. The State, during the course of the trial, offered in evidence these articles of clothing of the defendant, and they were admitted in evidence over the timely objection of the defendant. Also, the State offered and the court admitted over the timely objection of the defendant, in evidence several hairs which were recovered from the defendant during the disrobing process. Several of these hairs were identified at the trial as being the pubic hairs of a person of the negroid race, and two others as being the pubic hairs of a person of the non-negroid race. The latter two hairs were also shown to be similar to the pubic hairs of the victim.

The main contention of the appellant on this appeal is based upon the admitting in evidence of these articles of clothing and these hairs recovered from him during the disrobing process.

It is not necessary to pursue certain aspects of this case that may run afoul of the Constitution of the United States as now construed by the federal courts, including the United States Supreme Court. However, if this appeal is not reversed under the law of Alabama, a necessity for reversing it may be required by the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, citing Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. Wade adopted the rule of Cochran relative to whether or not an offer of counsel was rejected. '* * * there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

In a matter such as this, where the death penalty is inflicted, we are charged by the law of this State with a duty to examine with care the proceedings, and to see that the defendant is not denied his constitutional rights. The statute governing this appeal, usually termed the 'automatic appeal statute' makes this a solemn duty on the court to examine the entire record and evidence offered against the defendant. Act No. 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.

It is apparent from the record that the police officers involved in this arrest and prosecution of the defendant performed their duties well and fairly in the main. Likewise, the able district attorney and his excellent staff. The trial court was an example of carefulness and prudence in conducting the trial, yet the errors committed were fatal.

This court has long held, as early as 1889 and as late as 1960, that the protection under the Constitution of Alabama is two-fold in regard to the issues here--one protects the defendant from being compelled to Testify against himself, the other protects the defendant from being compelled from doing any Affirmative act that may result in the admission of evidence tending to incriminate him. Nothing in the record discloses that the defendant was warned that the Affirmative act of disrobing himself could result in evidence that could be used against him. Here, it was used against him. The deputy district attorney prosecuting the case frankly admitted, as follows:

'While this defendant was under arrest and in custody of the Officers of the Police Department he was required to, or either voluntarily, or both, took off all of his clothes, and those clothes were shaken and certain material came out of them and were examined microscopically by type and by screen tests and by other tests to determine whether or not there was blood on his clothes that were taken from him, and where the blood was. There was a hair--'

Also, the State Toxicologist testified as follows in response to this question by the prosecuting attorney:

'Q. He was clothed. Did you have him remove his clothes or garments from his body there on that occasion? (Emphasis supplied.)

'A. Yes, sir, I did.'

We are unable to conclude from the record that the action of the defendant in disrobing himself was voluntary. Although there may have been sufficient legal evidence upon which the jury based its verdict, we cannot presume that illegal evidence did not permeate the verdict. Supreme Court Rule 45 has no field of operation here. The test is not whether the illegal evidence influenced the jury, but whether it might have unlawfully influenced the jury in the verdict returned. Eaton v. State, 278 Ala. 224, 177 So.2d 444; Oliver v. State, 232 Ala. 5, 166 So. 615.

Here, fatal errors pierced the cloak of protection violating basic and fundamental rights provided this defendant by the Constitution of Alabama. Section 6, Article 1, Constitution of Alabama, 1901. This section provides, in part, that an accused 'shall not be compelled to give evidence against himself.' This provision has been construed as protecting a person from being required, against his will, from doing and positive act tending to operate as evidence against himself in a criminal case, and it has been held, and is the law of this State, that it does not violate this rule for another person to do an act against the will of the defendant which relates to his person and thereby cause defendant to reveal evidence later used against him. Aaron v. State, 271 Ala. 70, 82, 122 So.2d 360, quoted with approval Hunt v. State, 248 Ala. 217, 27 So.2d 186; Cooper v. State, 86 Ala. 610, 6 So. 110; Myhand v. State, 259 Ala. 415, 66 So.2d 544.

It may appear that these holdings are incompatible and are equivalent to legal hair-splitting, for it may be argued, how is a defendant harmed when his constitutional rights are violated by compelling him to take an Affirmative act which results in evidence used against him, when it would have been legal to take the same evidence from him through another's actions? Another way of stating an argument could be that in a particular case, who is harmed when a guilty defendant is convicted by illegal evidence. It has been so argued throughout history that, why object to convicting the guilty by illegal means when the same objective could be reached by legal means. The principle that 'the ends justify the means' has no place in constitutional law. Countless skeletons repose in the historical dungeons of the world giving mute testimony to the error of such argument. Today, it could be the guilty convicted by illegal means! Who knows whether tomorrow it would not be the innocent? The Alabama Constitution protects methods, as well as results, and above all, the Constitution must be upheld. We require no mandate from the Supreme Court of the United States.

An early decision by this court exactly in point, construing a similar section in an earlier Constitution to Article 1, § 6 of the Constitution of 1901, is the case of Cooper v. State, 86 Ala. 610, 6 So. 110. Chief Justice Stone, in discussing this section of the Constitution, among other things, said:

'* * * It doubtless had its birth in the abhorrence with which confessions, coerced by inquisitorial torture, were regarded alike in England and America. * * *'

In that case, an attempt was made to get the defendant to make footprints in order to get a comparison between them and footprints left by a...