Hubbard v. State
| Decision Date | 25 October 2019 |
| Docket Number | CR-17-1122 |
| Parties | Thomas Hubbard v. State of Alabama |
| Court | Alabama Court of Criminal Appeals |
Thomas Hubbard
v.
State of Alabama
CR-17-1122
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2019-2020
October 25, 2019
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Appeal from Colbert Circuit Court
(CC-16-341)
MINOR, Judge.
Thomas Hubbard was convicted of capital murder, see § 13A-5-40(a)(17), Ala. Code 1975, for the shooting death of Ki-Jana Freeman, and of first-degree assault, see § 13A-6-20, Ala. Code 1975, for the shooting of Tyler Blythe. Hubbard was
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sentenced to life in prison without the possibility of parole for his capital-murder conviction1 and to life in prison for the first-degree-assault conviction.2 He raises six issues on appeal: (1) Whether the circuit court should have granted his motion for a change of venue; (2) whether the State failed to establish the chain of custody for Freeman's body and the projectiles recovered from Freeman's body; (3) whether there was sufficient evidence to convict Hubbard of capital murder for the shooting death of Freeman; (4) whether there was sufficient evidence to convict him of the first-degree assault as to Blythe; (5) whether the circuit court improperly considered Hubbard's prior felony convictions in sentencing Hubbard under the Habitual Felony Offender Act, § 13A-5-9, Ala. Code 1975 ("the HFOA") on his first-degree-assault conviction; and (6) whether a sentence of life imprisonment without the possibility of parole violates the Eighth
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Amendment's prohibition on cruel and unusual punishment for someone who is "intellectually disabled." For the reasons discussed below, we find that Hubbard failed to preserve for our review issues (2), (5), and (6) above, and that there is no merit to the remaining issues Hubbard raises on appeal.3
On February 28, 2016, Hubbard's house on Midland Avenue in Muscle Shoals was burglarized while Hubbard was attending the funeral of his grandmother. A television, a Playstation-brand game console, a laptop computer, an Xbox-brand game console, and some cash were stolen from the house. Hubbard reported the burglary to the Muscle Shoals Police Department.
Two days later, on March 1, 2016, several members of a gang called the "Almighty Imperial Gangsters" attended a meeting called by Hubbard in Hubbard's bedroom. Several witnesses testified that Hubbard was the leader of the Almighty Imperial Gangsters. Besides Hubbard, the other members of the gang who attended the meeting were Peter Capote, Benjamin Young, Dewayne Austin Hammonds, Riley Hamm III ("Trey"), De'Vontae Bates, and Michael Blackburn.
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Hubbard's mother and several of the gang members' girlfriends were at the house during the meeting, but they did not attend the meeting in the bedroom. Hammonds and Bates testified at trial that during the meeting Hubbard told everyone that he was going to find out who broke into his house and he was going to kill them. Hubbard asked for everyone's help and Hammonds, who owned the Xbox game console that was stolen from Hubbard's house, mentioned Ki-Jana Freeman's name to Hubbard as someone who may have taken the Xbox. Hammonds, who had previously worked with Freeman, had seen a Facebook posting by Freeman about an Xbox, so he told Hubbard that Freeman had stolen the Xbox from Hubbard's house. He offered to set up a meeting with Freeman to confirm that the Xbox pictured in Freeman's Facebook post was Hammonds's Xbox.
Hammonds testified that there was a discussion during the meeting about using an SKS rifle and a pistol, and Hubbard mentioned buying ammunition for the SKS rifle. Hammonds at first testified that the SKS rifle belonged to Hubbard, but he later testified that the SKS rifle belonged to Young but that it was kept at Hubbard's house, where Young was living at the
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time. An undated photograph was introduced at trial showing Hubbard standing in his bedroom holding an SKS rifle.
Young, Capote, Megan Bryant (Young's girlfriend), and Bridgette Capote (Capote's wife) left Hubbard's house and went to Gander Mountain, an outdoor-gear store, in Florence to purchase ammunition for the SKS rifle. The State introduced surveillance footage from Gander Mountain showing Megan purchasing the ammunition, and it introduced the receipt from Gander Mountain showing that Megan purchased a 40-count box of 7.62X39-millimeter bullets on March 1 at 9:02 p.m.
Hammonds testified that he did not meet with Freeman but that he instead communicated with Freeman on Facebook Messenger4 about the Xbox until Hammonds had to leave Hubbard's house around 9:30 p.m. to go to work. At 9:36 p.m., Bates began messaging Freeman on Facebook Messenger about purchasing some drugs from Freeman.
Bates testified that it was his job to lure Freeman to the Spring Creek Apartments in Tuscumbia, so Bates arranged to meet Freeman at the Spring Creek Apartments to purchase the
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drugs from Freeman. Bates testified that, while he was still communicating with Freeman, Hubbard, Young, Capote, and Hamm left from Hubbard's house in a white pickup truck heading to the Spring Creek Apartments. Young was driving and Capote was in the passenger's seat. Bates testified that Hubbard was seated in the backseat behind Young and that Hamm was seated behind Capote. Bates continued to exchange messages with Freeman and at 10:58 p.m., Freeman said, "Boutta pull in. Just passed Fred's." (R. 572.) Bates responded, "What kinda car u in cause im in the back." (R. 573.) Freeman responded, "Blue Mustang. Pulling in now. The back on the right or the left road." At the time Bates was communicating with Freeman, Bates was still at Hubbard's house, and all the information Bates received from Freeman was being relayed to someone in the pickup truck.
"Q. Now, as you were communicating with [Freeman] about the details of this meeting, were you somehow letting the guys in the truck know what was going on?
"[Bates:] I was telling the females everything. One of the females was relaying it to one of the guys in the truck.
"Q. Do you remember which female that was at this point?
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"[Bates:] No, sir.
"Q. But the information that you had about when [Freeman] was coming, what kind of vehicle he was in, that was all being relayed to the people in the truck?
"[Bates:] Yes, sir."
(R. 581.)
Haley Putnam, Freeman's girlfriend, testified that on March 1, 2016, Freeman told her that he was going to meet "Dewayne" to sell him an Xbox. Freeman messaged Putnam that Tyler Blythe was with him in case "some stuff goes down." (R. 316.) Later that same evening Freeman told Putnam that he had told Dewayne to "F-off" but that he was heading to meet "Vonte" to get the money Vonte owed Freeman. At 10:58 p.m., Freeman sent a message to Putnam that he was "getting my cash right now." The Facebook Messenger exchange between Freeman and Putnam was admitted into evidence.
Blythe testified that on March 1, he was with Freeman in Freeman's car when he learned that Freeman was going to meet De'Vontae Bates. Blythe testified that Freeman pulled into the Spring Creek Apartments and parked. Blythe testified that they were sitting in Freeman's car when a white truck started backing up, and "we turned around to see who it was." Blythe
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testified that he heard Freeman say, "Oh, fuck" and that "before I could say 'what,' the shooting started." (R. 347.) Both Freeman and Blythe were shot multiple times. Blythe testified that he was taken by ambulance to Helen Keller Hospital and then airlifted to Huntsville Hospital where he stayed for seven days.
Jody Baughn testified that around 10:30 or 11:00 p.m. on March 1, 2016, she was looking out of her apartment window at the Spring Creek Apartments when she saw a white pickup truck pull into a spot and back up. The truck stopped and then "both doors opened." Baughn testified: "I seen two people get out and start walking to the back of the pickup." (R. 377.) One person got out of the passenger side and one person got out of the driver's side. Baughn testified that as soon as the two men reached the back of the pickup truck, she heard shooting.
Lt. Jeremy Ware of the Tuscumbia Police Department testified that he was working a car-accident scene on March 1 when he heard gunshots. He headed in the direction of the gunshots, and, when he arrived at the Spring Creek Apartments, he saw a group of 50 to 100 people in the parking lot between
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two of the apartment buildings. Witnesses at the scene told Lt. Ware that a 4-door white truck had left the scene. Lt. Ware saw a Blue Mustang with multiple bullet holes in it. He found Freeman in the driver's seat, slumped over, with multiple gunshot wounds to his body. Lt. Ware testified that there were several 7.62X39-millimeter shell casings scattered on the ground.
Det. Wes Holland of the Tuscumbia Police Department viewed surveillance footage from the Spring Creek Apartment's security camera. The surveillance video showed a Ford Mustang pulling into the apartment parking lot at 10:58 p.m. Although Det. Holland at first saw only two people getting out of the white pickup truck, after watching the surveillance video several times, Det. Holland realized that one of the back doors of the truck was also opened at the apartment complex.
"When they backed up and the vehicle stops, two guys get out of the vehicle and walk toward the back. If you watch carefully the passenger's side rear door opens up after the two subjects are away from the truck. The subject that got out of the passenger's side almost runs into that door. He has to go around it and get back inside the vehicle."
(R. 442.) Det. Holland testified that he could see the back passenger door of the truck closing as the two...
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