Hubbard v. State

• Decision Date: 01 May 1979
• Docket Number: 6 Div. 715
• Citation: 382 So.2d 577
• Parties: J. B. HUBBARD, alias James Billy Hubbard, alias John Barney Hubbard v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 577

382 So.2d 577

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

6 Div. 715.

Court of Criminal Appeals of Alabama.

May 1, 1979.

After Remandment June 5, 1979.

Rehearing Denied June 26, 1979.

Ralph C. Burroughs, Public Defender, Walter P. Crownover of Crownover, Mountain & Lowther, Joel L. Sogol, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., James F. Hampton, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The defendant was indicted in a two count indictment under the Alabama Death Penalty Act for "(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. Count two charged second degree murder with the prior conviction. ¹

A jury found the defendant "guilty of murder in the first degree with aggravated circumstances as charged in count one of the indictment and fix his punishment at death". We find the verdict to be responsive to the indictment and consistent with the principles set forth in Ex Parte Clements, 370 So.2d 723 (Ala.1979). At trial and on appeal the defendant is represented by the Public Defender's Office of Tuscaloosa County.

The defendant was convicted in 1957 for second degree murder and sentenced to fifty years' imprisonment. He was released in October of 1976 "on the good time law". Since his release from prison the defendant had been living with Mrs. Lillian Montgomery at her house and store.

Shortly after 8:00 on the morning of January 10, 1977, an ambulance arrived at the Montgomery Store on Highway 82 in Tuscaloosa, Alabama. The defendant, who had telephoned the police department, was standing in a side door and signaled the ambulance attendants to come into the kitchen. There Mrs. Montgomery lay dead on the floor having been shot three times with her own .38 caliber pistol. At the scene the defendant told the police that "he and Mrs. Montgomery had been in the upstairs bedroom arguing, that she'd went downstairs and he had heard what he thought were two shots" about 7:00 that morning. The pistol and a one-half pint bottle of Cabin Hollow whiskey were found on the defendant after he told a police officer that he had the weapon. Nitrate tests revealed a small amount of powder residue on both of the defendant's hands and on the right hand of the deceased. The presence of the residue indicates that the test subject has recently fired a weapon or has handled a weapon that has recently been fired.

At police headquarters the defendant gave a statement in which he indicated that Mrs. Montgomery committed suicide.

I

Initially the defendant contends that his prior conviction for murder in the second degree is void because at that trial he was represented by incompetent counsel. To support this allegation the defendant states (1) that his trial counsel was laboring under a conflict of interests and (2) that counsel was incompetent in the handling of his appeal.

A Competency of 1957 Trial Counsel

The defendant was convicted for murder in the second degree in 1957. The essence of the claim of incompetent counsel is that trial counsel, Hon. James Marshall, represented both the defendant and his father-in-law, Divid Hubbard, who also had been indicted for the same murder. Although Divid was an eyewitness to the shooting in which the defendant claimed self-defense, he was not called to testify in the defendant's behalf.

In 1962 the defendant filed a petition for writ of error coram nobis in the Circuit Court of Tuscaloosa County. A hearing was held on this matter and the defendant was represented by court appointed counsel. On February 15, 1963, in denying the petition, the trial court entered a lengthy order and finding of facts. After summarizing the testimony of each witness the court stated its findings, portions of which we now set forth.

"Following the lengthy hearing in this case or cause, held on January 28, 1963, the Court makes the following findings of facts, and conclusions of law, based on the allegations of the petitioner, and the testimony and evidence offered at the coram nobis hearing, said findings and conclusions being as follows:

"In the first instance, the petitioner and his family for a very substantial sum of money, to-wit, One Thousand ($1,000.00) Dollars, retained the services of Hon. James Marshall, a member of the Tuscaloosa County Bar Association, who the Court finds to have been a very well experienced in handling all aspects of the practice of law, and particularly criminal defense, including defense of defendants charged with the offense of murder in the first degree, that said attorney was diligent, resourceful and able, both in investigation and preparation of the petitioner's original case and in the trial thereof."

"The Court finds Divit Hubbard was an eye witness and that he testified in this coram nobis hearing to the effect that at the time of the fatal shooting of the victim by the petitioner, the victim was unarmed, that he heard no threat from the victim to the petitioner uttered, and that he saw no sign of any provocation for the shooting. Thus, the Court finds that Mr. Marshall was wise in not using Mr. Divit Hubbard's testimony in the original case, since it would have been very hurtful to the defense of the petitioner.

"The Court finds further that since at the time of the trial of the petitioner in the original case the said, Divit Hubbard, was also charged with the murder of this same victim, he could not have been required to testify in petitioner's trial, and that the said Divit Hubbard could not reasonably have been expected to testify in petitioner's case due to the possibility of self incrimination.

"The Court finds further that when the petitioner signed his name to a dismissal of his appeal, he clearly and well understood what he was doing.

"The Court further finds that the petitioner through his witnesses and evidence presented in this coram nobis hearing showed nothing which was new or which had been unknown at the time of the original trial, but that, conversely, his own witnesses at this said coram nobis hearing made the case against him even stronger on the date of said hearing than at the original trial.

"The Court finds in conclusion that at all times after commission of the said crime the petitioner has received both fair and equitable treatment and has in no instance been deprived of any right accorded and afforded to him either by common law, legislative act, the Constitution of Alabama, the Constitution of the United States of America, or of any other right of which this Court knows or has been informed or had brought to its attention.

"This Court further finds that petitioner's court appointed counsel at the coram nobis hearing, rendered a thorough and complete service to the petitioner, and that petitioner was most adequately represented at the coram nobis hearing, and the Court hereby commends the Honorable Walter Flowers for his services, these services being rendered without any remuneration from any source whatsoever."

On December 19, 1968, the defendant filed a second petition for writ of error coram nobis before the Circuit Court of Tuscaloosa County wherein he alleged that "he was not properly represented by counsel and that his attorney stated to the court that he had never tried a murder case and that he did not know much about criminal cases". Counsel was again appointed to represent the appellant.

On March 25, 1969, the District Attorney filed a motion to dismiss alleging that this second petition did not disclose any different grounds from those stated in the first petition and that all the matters alleged in the second petition were covered in the first. ²

On March 25, 1969, a hearing was held on this petition. The appellant was present, was represented by appointed counsel and had witnesses testify in his behalf. After having heard the testimony, Presiding Circuit Judge Aubrey Dominick entered an order and judgment of the court. After reciting the evidence presented Judge Dominick found:

"Petitioner did not show and could not show any new ground or grounds which had not been given in support of the Petition for Writ of Error Coram Nobis than given on said trial on January 28, 1963.

"The Court is of the further opinion that no new or different grounds in this Petition have been shown or indicated by Petitioner or his attorney which would in any material respect be new evidence or different from that evidence presented in the hearing before Judge W. C. Warren on January 28, 1963, being Case No. 7891-A in the Circuit Court of Tuscaloosa County, Alabama, and in which case a written Order and Judgment of the Court was made and entered and is in the court file and signed by Judge W. C. Warren on February 15, 1963, since the Court had taken the matter under advisement after the trial on January 28, 1963."

Thereupon the court denied the petition and granted the State's motion to dismiss under Supreme Court Rule 50, Code of Alabama 1940, Volume 3, 1967 Cumulative Supplement. ³ This judgment of the Circuit Court was affirmed by this Court without opinion on June 16, 1970, on authority of Supreme Court Rule 50 and Nolan v. State, 43 Ala.App. 711, 199 So.2d 178 (1967).

In the case now under review a pretrial hearing was held on the issue of attorney Marshall's alleged incompetence. The facts there presented fully support, and do not contradict, the findings of Judge Warren. At the conclusion of the hearing the trial judge ruled that the defendant's 1957 conviction was admissible.

"I find from the evidence presented here and based on the findings not only of Judge Warren but also Judge Dominick that defendant was rendered assistant and competent counsel within the meaning of the case I don't have the case, it's a very recent case where they go into this in Alabama, where the Court of...