Hubbard v. State

• Decision Date: 01 February 1991
• Citation: 584 So.2d 895
• Parties: J.B. HUBBARD, alias Billy Hubbard, alias John Barney Hubbard v. STATE. CR 89-928.
• Court: Alabama Court of Criminal Appeals

Page 895

584 So.2d 895

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

CR 89-928.

Court of Criminal Appeals of Alabama.

Feb. 1, 1991.

Rehearing Denied March 15, 1991.

Certiorari Denied Aug. 9, 1991

Alabama Supreme Court 1901042.

Alan D. Rose, Valerie S. Carter, David A. Buris and Karen E. Wier of Nutter, McClennen & Fish, Boston, Mass., for appellant.

Don Siegelman, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

TYSON, Judge.

J.B. Hubbard appeals from the denial of his petition seeking post-conviction relief under Rule 20, Alabama Temporary Rules of Criminal Procedure. The petition was denied by the trial court after a full evidentiary hearing, during which the appellant was represented by counsel.

The appellant was convicted of capital murder and was sentenced to death. ¹ This court affirmed the conviction in Hubbard v. State, 500 So.2d 1204 (Ala.Crim.App.1986). This court's judgment was affirmed in Ex parte Hubbard, 500 So.2d 1231 (Ala.1986). The United States Supreme Court denied certiorari in Hubbard v. Alabama, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987). Hubbard filed this petition seeking post-conviction relief in the Tuscaloosa County Circuit Court. He raised some 32 issues in the petition, some of which contain multiple subparts. After an evidentiary hearing, the trial court made express written findings of fact and conclusions of law. These findings and conclusions are adopted as Appendix A to this opinion and are approved unless otherwise noted in our footnotes to Appendix A.

Several of Hubbard's claims are procedurally barred because they were (1) raised and addressed on direct appeal in Hubbard v. State, 500 So.2d 1204 (Ala.Crim.App.), aff'd, 500 So.2d 1231 (Ala.1986), see Ex parte Clisby, 501 So.2d 483 (Ala.1986); Baldwin v. State, 539 So.2d 1103 (Ala.Crim.App.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989); (2) could have been raised at trial and on direct appeal but were not, see Clisby; Baldwin; or (3) not raised in the Rule 20 proceeding. See, e.g., Bell v. State, 518 So.2d 840 (Ala.Crim.App.1987), cert. denied, 486 U.S. 1036, 108 S.Ct. 2024, 100 L.Ed.2d 611 (1988); Jackson v. State, 501 So.2d 542 (Ala.Crim.App.1986); cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 746 (1987). We completely adhere

to the views heretofore expressed in the opinion of this court on original appeal of this conviction. We will address four of the appellant's claims below.

I

We have carefully considered the appellant's assertions with reference to his representation by counsel. We conclude that he failed, both as to trial and as to the original appeal, to show either inadequate or ineffective representation by counsel. In order to prove ineffective assistance of counsel,

"[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The appellant failed to satisfy either prong of this test. As duly noted by the trial court, in Hubbard v. State, 500 So.2d at 1227, this court stated, "It is our opinion that appellant received a fair trial and was ably represented throughout the proceedings." A review of the record leads us to the conclusion that the trial court's findings of fact and conclusions of law are correct and are fully supported by the record. We also note that the appellant was also fully and fairly represented at the Rule 20 petition hearing and in his appeal of that proceeding which is presently before this court.

II

The appellant contends that the trial court's judgment on the Rule 20 petition is due to be reversed because the trial court's order is a carbon copy of the proposed order submitted by the prosecution. A review of the record reveals that although the trial court's order is substantially similar to the proposed order, there are some differences. Furthermore, the trial court clearly stated that it spent two full days fashioning its own order even though it adopted many of the State's proposed findings. (R. 593).

"[E]ven when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson v. Bessemer City, North Carolina, 470 U.S. 564, 572, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 527 (1985). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (verbatim findings are not to be summarily rejected and will stand if supported by the evidence); Weeks v. State, 568 So.2d 864 (Ala.Crim.App.1989), cert. denied, Weeks v. Alabama, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990) (issue discussed in dicta); Morrison v. State, 551 So.2d 435 (Ala.Crim.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990) (trial court's findings of fact and conclusions of law were not clearly erroneous and adoption of findings and conclusions was proper). Under the circumstances of this case, we see no reason to doubt that the findings of fact and conclusions of law, with which we agree, represent the judge's independent judgment and own considered conclusions.

III

The appellant next contends that the trial court erred in denying his request for State funds to hire experts to testify at the Rule 20 hearing. The appellant sought to hire a psychiatrist, toxicologists and experts in police procedure. We find that the appellant received a full and fair hearing. The evidence the appellant sought to introduce through these experts was either already before the court in another form or was not necessary to the court's determination. Furthermore, the fundamental fairness mandated by the Due Process Clause does not require the trial court to approve

such funds. See generally, Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (no requirement that indigent defendants be appointed counsel in post-conviction proceedings); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (same); Ex parte Cox, 451 So.2d 235 (Ala.1983) (same); Hobson v. State, 425 So.2d 511 (Ala.Crim.App.1982) (same). The appellant has failed to show how the denial of the request prejudiced his case in any way.

IV

The appellant next contends that he was denied a full and fair coram nobis proceeding because the trial court effectively refused to permit an expert to testify as to ineffective assistance of counsel because he refused to approve an expert witness fee. This argument has no merit, because the appellant has failed to demonstrate that the denial of funds prejudiced his case in any way. Expert testimony is not required for an ineffective assistance of counsel determination. Furthermore, because there is no merit to any of the appellant's ineffective assistance of counsel claims, he certainly was not prejudiced by the trial court's ruling.

We have carefully reviewed the allegations and legal arguments in support of this appeal and find no error. For the reasons stated herein, the judgment of the Tuscaloosa County Circuit Court denying the appellant's Rule 20 petition is due to be, and it hereby is, affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

In the Circuit Court of Tuscaloosa County, Alabama

Case No. CC77-180.60

Oct. 18, 1990.

J.B. Hubbard, Petitioner,

vs

State of Alabama, Respondent.

ORDER ON CORAM NOBIS PETITION

An evidentiary hearing was held on petitioner's ineffective assistance of counsel claims on June 21, 1988. At the hearing, petitioner was represented by counsel and presented evidence. In addition, the parties conducted a deposition after the hearing, evidence of which this Court has considered. The Court, after hearing the testimony and observing the demeanor of the witnesses, makes the findings of fact and conclusions of law set out below:

Trial Counsel

Douglas Hendrix and Michael Stilson were appointed to represent petitioner on January 4, 1982. Hendrix was licensed to practice law in this state in 1950 and Stilson in 1974. By 1982 Hendrix's practice was fifty percent criminal defense work while Stilson's practice was about twenty percent criminal defense work. Both attorneys had defended clients charged with murder prior to petitioner's trial, but petitioner's case was their first case under the existing death penalty statute. Both Hendrix and Stilson had conducted numerous felony jury trials before representing petitioner. Hendrix was at the time of petitioner's trial an experienced and capable criminal defense attorney.

In preparation for petitioner's trial, Hendrix and Stilson reviewed the transcripts of petitioner's 1977 trial as well as petitioner's 1957 murder trial. Trial counsel examined the trial exhibits and the public defender's files from the 1977 trial. Prior to petitioner's trial, trial counsel talked with one of petitioner's previous attorneys, Joel Sogol, and contacted the Southern Poverty Law Center for information concerning death penalty cases.

Stilson and Hendrix met with petitioner more than ten times prior to trial, both at the jail and in the courthouse. These meetings would on occasion last an hour or two. Petitioner provided trial counsel with names of witnesses and trial counsel followed-up on this information. Trial counsel filed a motion for funds to hire an investigator to locate witnesses. (R Trial counsel filed numerous pre-trial motions including motions...