Hubbell v. State, No. 03S00-9912-CR-714.

Docket NºNo. 03S00-9912-CR-714.
Citation754 N.E.2d 884
Case DateSeptember 05, 2001
CourtSupreme Court of Indiana

754 N.E.2d 884

Jason HUBBELL, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)

No. 03S00-9912-CR-714.

Supreme Court of Indiana.

September 5, 2001.


754 N.E.2d 887
Sean G. Thomasson, Roderick D. McGillivray, Columbus, IN, Attorneys for Appellant

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

754 N.E.2d 885

754 N.E.2d 886
BOEHM, Justice

Jason Hubbell was convicted of murder and criminal confinement and sentenced to seventy-five years imprisonment. In this direct appeal, he raises ten issues, which we restate as eight. Hubbell contends: (1) the trial court erred by not dismissing the grand jury's indictment; (2) evidence of the location of the victim's body and cellular phone calls violated the alibi statute; (3) the trial court abused its discretion in admitting physical and testimonial evidence; (4) the admissions of his post-polygraph statements violated his right to cross-examine witnesses; (5) the trial court abused its discretion in admitting a witness' pretrial and trial identification of Hubbell; (6) the State committed several Brady violations; (7) he was denied his right to counsel by frequent moves throughout the Department of Corrections; and (8) he was entitled to a new trial based on cumulative error. We affirm the judgment of the trial court.

Factual and Procedural Background

Sharon Myers left for work at the Arvin plant early on the morning of May 13, 1997. She never arrived. Another employee of Arvin, Sherry Young, saw a man and a woman leaving the Arvin plant as she arrived at work that same morning. The woman looked similar to Myers. The man had one hand on the woman's neck or back, and the two entered a white van and drove away.

The police came to the plant later that morning to look for Myers. Young had "mentally" made note of the license plate number and gave the police the number and a description of the van. The police traced the license plate number to a white van owned by Hubbell. Hubbell worked at the Arvin plant with Myers and had called in sick on May 13. Young then identified a picture of the van as the one she had seen that morning, and later that day identified Hubbell when police presented him to her.

In November 1997, skeletal remains were found in a marsh area in Johnson County and identified as Myers' through dental records. An autopsy showed a fracture in the hyoid bone1 which, together with the size of a ligature found around Myers' neck, indicated that the cause of death was manual strangulation. Acrylic fibers found near the body were consistent with fibers found in Hubbell's van. Grass fragments found in the search of the van were consistent with grass samples from the marsh. The FBI obtained fingerprints from the van and also shot several rolls of film of fingerprints that might or might not be different from the fingerprints taken.

754 N.E.2d 888
No prints from Myers were identified, and the authorities lost the rolls of film.

On August 31, 1998, Hubbell was indicted by a grand jury on the charges of murder and criminal confinement. On September 28, Hubbell filed a notice of alibi, which he amended on October 15. The State did not respond. At trial, the State introduced parts of Hubbell's statements made following a polygraph examination. The State also introduced testimony from a jail inmate that Hubbell admitted the killing to him. Hubbell was convicted of both charges after a four-week jury trial in October and November of 1999. The trial court sentenced him to sixty-five years for murder and ten years for confinement, to be served consecutively.

I. Grand Jury Indictment

Hubbell first argues that, because there were police officers present during the grand jury proceedings, he was prejudiced and the indictments should be dismissed. Before trial, Hubbell moved to dismiss the grand jury indictment. The trial court denied Hubbell's motion after a hearing on the matter.

Indiana Code section 35-34-2-4 prescribes the conduct of grand jury proceedings and allows for a limited number of people, including witnesses, clerks, and the prosecuting attorney's staff, to be present during the proceedings. In Indiana, there is no per se rule presuming prejudice when unauthorized persons appear before the grand jury, or even when those persons participate in the interrogation of witnesses. Fair v. State, 266 Ind. 380, 390, 364 N.E.2d 1007, 1012 (1977). To obtain dismissal of an indictment, the defendant must show that his substantial rights were prejudiced. In this case, Hubbell contends that there were two police officers present during the grand jury proceedings. The first, Detective Ken Hardwick, was present during the testimony of Hubbell's wife, Robyn Hubbell. Hubbell claims that Hardwick made gestures indicating that Robyn was being untruthful and consulted with the prosecuting attorney during Robyn's testimony. Hubbell also claims that another detective, Mark Gorbett, acted similarly when Hubbell's alibi witness, Heather Hilliard, testified. Finally, he contends that two other witnesses before the grand jury were harassed.

At the hearing on the motion to quash the indictment, the State submitted an affidavit from Gorbett claiming that although officers were present, none of them took any actions indicating untruthfulness by the witnesses. Robyn testified that although her demeanor was affected by the police officers, the content of her testimony remained the same. The trial court then ruled:

At this time as it relates to the Motion to Quash or Motion to Dismiss the Grand Jury Indictment, I'm going to find that the defendant has not proven by a preponderance of the evidence that his substantial rights have been prejudiced and I'm going to deny the Motion to Quash.

It is for the trial court to evaluate the truthfulness of the witnesses. We cannot conclude on this record that the finding of absence of prejudice was error.

II. Alibi Statute

The indictment in this case stated that Hubbell was in Bartholomew County on May 13, 1997. Hubbell contends that the trial court erred by admitting evidence of Myers' body, which was found in Johnson County, and cellular phone calls that were made from outside Bartholomew County. The basis of this contention is his notice of alibi defense claiming he was in Bartholomew County on those dates. The State did not respond

754 N.E.2d 889
to the notice. Under the alibi statute, Indiana Code section 35-36-4-3, if the State does not respond to a notice of alibi defense, the court is to exclude "evidence offered by the prosecuting attorney to show that the defendant was at a place other than the place stated in . . . the indictment." This Court has refused to adopt a rule excluding all evidence of events occurring outside the time and spatial limits raised by a notice of alibi defense. Woods v. State, 250 Ind. 132, 143, 235 N.E.2d 479, 485 (1968). Testimony describing events outside these limits is admissible if it circumstantially proves commission of a particular crime within the limits. Id. Evidence of Myers' body was not used to prove that Hubbell committed a crime in Johnson County, for example, body dumping. See Ind.Code §§ 23-14-54-1 to 2, 23-14-54-5 (1998). Rather, it was offered as circumstantial evidence supporting the claim that he committed crimes in Bartholomew County.2

Similarly, the cellular phone calls were not offered to establish that Hubbell was outside of Bartholomew County. At trial, David Ebney, a former operations manager for Blue Ridge Cellular, testified that the signal of the Indianapolis cellular phone tower overlapped into Bartholomew County. The trial court also admitted Hubbell's cellular phone bill, which showed that he made two phone calls on May 13, 1997 through a cellular tower located north of Bartholomew County. However, there was no testimony that calls from the cellular tower outside of Bartholomew County must have been made outside of Bartholomew County. The jury was left with unconnected and incomplete testimony on that point. In short, the evidence of the location of the body and calls was not used to prove that the "defendant was at a place other than the place stated in the indictment." Accordingly, the trial court did not err in admitting this evidence.

III. Evidentiary Issues

Hubbell contends that there were two evidentiary errors in his case that require reversal because the resulting prejudice outweighed any probative value. Relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Ind. Evidence Rule 403. The trial court's rulings on the admission of evidence under Rule 403 are reviewed for an abuse of discretion.

A. Hubbell's Gun and Ammunition

Hubbell contends that the admission of a handgun found in his home and bullets found in his van violated Indiana Evidence Rule 403. The State argues that because the gun matched bullets found in the van, the jury could have concluded that the gun was used to coerce Myers into the van. Hubbell filed a pretrial motion in limine to exclude this evidence arguing that there was no evidence that a gun was used to commit this crime. The State argued that Myers left her work "against her will," presuming that a gun was used to coerce her. The trial court denied the motion.

We agree with Hubbell that the introduction of the gun and bullets was an abuse of discretion. The State presented no evidence that Myers was coerced with a gun to leave her place of employment and no evidence that the gun was in any way connected with her murder. Its suggestion that Hubbell may have used the gun to coerce Myers is no more than speculation given the absence of any other evidence suggesting the use of a weapon.

754 N.E.2d 890
There also was a danger of unfair prejudice from admission of the gun. "As a general proposition, we agree that the introduction of weapons not...

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45 practice notes
  • State v. McCaleb, No. E2017-01381-SC-R11-CD
    • United States
    • Supreme Court of Tennessee
    • August 21, 2019
    ...the circumstances surrounding his confession and also faced the prospect of a fundamentally unfair trial if he did. Cf. Hubbell v. State, 754 N.E.2d 884, 891 (Ind. 2001) (stating that requiring a criminal defendant to choose between incomplete questioning about his polygraph examination, th......
  • Escamilla v. Shiel Sexton Co., No. 54S01-1610-CT-546
    • United States
    • Indiana Supreme Court of Indiana
    • May 4, 2017
    ..., 908 N.E.2d at 225, gruesome photographs, see Pruitt v. State , 834 N.E.2d 90, 118 (Ind. 2005), a gun and bullets, Hubbell v. State , 754 N.E.2d 884, 890 (Ind. 2001), and drug purchases evidence, Jenkins v. State , 729 N.E.2d 147, 149 (Ind. 2000), should be excluded in certain cases as sub......
  • Strack v. State, Court of Appeals Case No. 21A-CR-922
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 2021
    ...finds some legitimacy in our precedents. See Myers v. State , 887 N.E.2d 170, 196 (Ind. Ct. App. 2008) (citing Hubbell v. State , 754 N.E.2d 884, 895 (Ind. 2001) ) ("The Indiana Supreme Court has provided for the possibility that the cumulative effect of trial errors may warrant reversal.")......
  • Strack v. State, 21A-CR-922
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 2021
    ...argument finds some legitimacy in our precedents. See Myers v. State, 887 N.E.2d 170, 196 (Ind.Ct.App. 2008) (citing Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001)) ("The Indiana Supreme Court has provided for the possibility that the cumulative effect of trial errors may warrant reversa......
  • Request a trial to view additional results
46 cases
  • State v. McCaleb, No. E2017-01381-SC-R11-CD
    • United States
    • Supreme Court of Tennessee
    • August 21, 2019
    ...the circumstances surrounding his confession and also faced the prospect of a fundamentally unfair trial if he did. Cf. Hubbell v. State, 754 N.E.2d 884, 891 (Ind. 2001) (stating that requiring a criminal defendant to choose between incomplete questioning about his polygraph examination, th......
  • Escamilla v. Shiel Sexton Co., No. 54S01-1610-CT-546
    • United States
    • Indiana Supreme Court of Indiana
    • May 4, 2017
    ..., 908 N.E.2d at 225, gruesome photographs, see Pruitt v. State , 834 N.E.2d 90, 118 (Ind. 2005), a gun and bullets, Hubbell v. State , 754 N.E.2d 884, 890 (Ind. 2001), and drug purchases evidence, Jenkins v. State , 729 N.E.2d 147, 149 (Ind. 2000), should be excluded in certain cases as sub......
  • Strack v. State, Court of Appeals Case No. 21A-CR-922
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 2021
    ...finds some legitimacy in our precedents. See Myers v. State , 887 N.E.2d 170, 196 (Ind. Ct. App. 2008) (citing Hubbell v. State , 754 N.E.2d 884, 895 (Ind. 2001) ) ("The Indiana Supreme Court has provided for the possibility that the cumulative effect of trial errors may warrant reversal.")......
  • Strack v. State, 21A-CR-922
    • United States
    • Indiana Court of Appeals of Indiana
    • November 29, 2021
    ...argument finds some legitimacy in our precedents. See Myers v. State, 887 N.E.2d 170, 196 (Ind.Ct.App. 2008) (citing Hubbell v. State, 754 N.E.2d 884, 895 (Ind. 2001)) ("The Indiana Supreme Court has provided for the possibility that the cumulative effect of trial errors may warrant reversa......
  • Request a trial to view additional results

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