Lewis v. State, 6 Div. 740

• Decision Date: 21 November 1978
• Docket Number: 6 Div. 740
• Citation: 367 So.2d 542
• Parties: Hubert LEWIS, alias v. STATE
• Court: Alabama Court of Criminal Appeals

Page 542

367 So.2d 542

Hubert LEWIS, alias v. STATE

6 Div. 740.

Court of Criminal Appeals of Alabama.

Nov. 21, 1978.

Rehearing Denied Jan. 16, 1979.

James C. Pino of Green & Pino, Pelham, for appellant.

William J. Baxley, Atty. Gen., and James L. O'Kelley, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Appeal from denial of writ of error coram nobis.

At the October session of the 1975 Jefferson County Grand Jury, appellant was indicted for the stabbing deaths of two hobos. These two murders allegedly arose out of the same transaction. Appellant was tried separately on the two murder charges. He was represented by the same two attorneys at both trials. Different counsel was appointed to represent appellant in coram nobis proceedings and on this appeal.

On the trial of the first case in April 1976, appellant was convicted of second degree murder. He was sentenced to thirty-five years imprisonment and is presently serving that sentence in the Jefferson County Jail. This court affirmed that conviction on June 28, 1977, without opinion. Lewis v. State, 6 Div. 245. The Supreme Court of Alabama denied certiorari on August 26, 1977, without opinion. Ex parte Lewis, SC 2752.

On the trial of the second case in July 1976, appellant was acquitted.

In December 1977, appellant petitioned the trial court pro se for a new trial by writ of error coram nobis alleging thirty-four grounds. The trial court held a hearing on January 10, 1978, to consider two of those grounds: (1) that appellant's trial counsel erred for failure to subpoena certain witnesses (which ground the court considered in the nature of newly discovered evidence); and (2) ineffective assistance of counsel in violation of appellant's federal sixth amendment rights. The trial court denied appellant's writ, hence, this appeal.

Appellant contends on appeal that if two witnesses who testified at the second trial (wherein appellant was acquitted) had been subpoenaed to testify at the first trial (wherein appellant was convicted), he would not have been convicted in the first instance. Appellant argues that he should be granted a new trial based on that newly discovered evidence, but should this court decide that it is not newly discovered evidence, then trial counsel was incompetent for failure to discover the witnesses.

Testimony at both trials estimated that the murders took place sometime between the evening of July 7, 1975, and the morning of July 8, 1975. The bodies were discovered under the Red Mountain Expressway near the 24th Street viaduct in Birmingham. This is an area near the railroad tracks where hobos and "winos" hang out hoping to obtain part-time work at the nearby warehouses. The warehouse of Standard Distributors (hereinafter, Standard) is located in the vicinity of the alleged murder scene. One or more of the State's witnesses testified at both trials that the appellant and four or five others had worked at Standard unloading pool tables on July 7, 1975, thereby placing appellant near the alleged crime scene on the date of the murders.

The State's evidence on both trials, and inferences therefrom, would indicate that the two hobo victims met the appellant on July 7, 1975, in the vicinity of the Standard warehouse. One of the victims carried a zippered bag. Each was drinking wine and offered a drink to some of the workmen in the vicinity. They then left to purchase more wine and returned shortly. Appellant and a companion, James Jones, had a drink from the fresh bottle, and the victims left. Appellant then indicated to Jones that the victims had money, and he was going to get it. Their bodies were found the next day. A black zippered bag resembling the one carried by one of the victims was found by police in appellant's room. The bag bore the initials "DHK." A zipper tab from the bag bearing the same initials was found at the scene of the crime.

Appellant testified at the coram nobis hearing that he told his attorneys, either before or during the first trial, that there was a witness who could testify in his behalf that he did not work at Standard on July 7, 1975, but in fact worked on July 3, 1975. Appellant could only remember that the witness was called "James" and could not remember his last name. Appellant thought that the witness was employed by Standard and would know on what date the five or six men unloaded the pool tables. Appellant's trial counsel contacted the owner-manager of Standard and was told that no records existed as to the payments made for unloading pool tables on either July 3 or July 7, 1975, because the men were paid from "petty cash." The record is silent as to whether the trial counsel inquired as to the existence of an employee by the name of "James" at Standard.

During the course of the second trial, appellant remembered the name of the witness. The witness was James DeBardeleben, the foreman at Standard. Trial counsel asked for a recess at trial and immediately contacted the owner of Standard. Again trial counsel was told by the owner that no records existed as to date of payment relative to unloading pool tables on either July 3 or July 7, 1975. Trial counsel then contacted James DeBardeleben and Standard's bookkeeper, Mrs. Clara Russell, with positive results. Mrs. Russell and DeBardeleben were then subpoenaed to testify at the second trial. Mrs. Russell testified that records did exist as to the date of payments made to five men unloading pool tables, but that no names were listed. Mrs. Russell testified additionally that only one unidentified man worked on July 7, 1975. Those records were introduced into evidence. Both witnesses testified that the pool tables were unloaded on July 3, 1975.

I

The requirements necessary to grant a new trial on the claim of newly discovered evidence was stated in Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (1975), cert. denied, 295 Ala. 430, 325 So.2d 539 (1976) " ' . . . "(1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching." ' "

The instant issue is whether the fact that appellant worked unloading pool tables on July 3, 1975, instead of July 7, 1975, would so destroy the testimony of State's witnesses that the jury would probably acquit appellant. On coram nobis we are not dealing with mere Possibilities. As stated in Zuck, supra, the newly discovered evidence, when taken with the other evidence present, must Probably cause the jury to acquit the defendant. "Probability" means a "likelihood," or "having the appearance of truth," or "appearing to be founded in reason, having more evidence for than against." 34 Words and Phrases, 3 "Probability."

A capsule of the other evidence presented at both trials with appropriate differences between the two trials is as follows:

(1) At the first trial the testimony of State's witness Charley Russell concerning whether appellant worked at Standard on July 7, 1975, was not positive and specific. At the second trial, Charley Russell's testimony was positive and specific that five men worked on July 7.

(2) At the second trial, DeBardeleben and Mrs. Russell testified that a large shipment of pool tables were unloaded on July 3 and not July 7. There was no testimony at the first trial on this point.

(3) The testimony at both trials as to the cause of death was that the two victims died of multiple stab wounds.

(4) The testimony of Charley Russell at both trials was that appellant, while working at Standard, demonstrated to co-workers how fast he could draw a knife out of his pocket and flip the blade open.

(5) The testimony of Charley Russell and Detective Gullion at both trials was that appellant was seen drinking wine with the two victims.

(6) The testimony of Rev. Williams in the first trial was that a zippered black bag found in the possession of appellant was like one Rev. Williams had given the victim. His testimony in the second trial was that the zippered black bag was like one he had given to the companion of the victim in this trial.

(7) Appellant's brother testified in the first trial that appellant owned a zippered black bag. Appellant's brother did not testify at the second trial.

(8) Detective Melvin Gullion testified at both trials as to the substance of the testimony of James Jones, Jr., given at preliminary hearing. Jones was allegedly in the company of appellant sometime on the date of the murders, but died before the first case went to trial. Referring to what appellant told Janes concerning the victims, Detective Gullion related the following: " . . . that they had some money and he was going to get it;" " 'They got something, and I am going to get it;' " " 'You come on and go with me, and I will do it all;' " " 'You won't have to do nothing.' "

(9) The testimony of Charley...