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 sentenced to life in prison without the
possibility of parole for his capital-murder
conviction[1] 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 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]
Facts
and Procedural History
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. 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 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
Messenger[4] 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 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?
"[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 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 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 men were
getting back into the truck. The surveillance footage was
admitted into evidence at trial and played for the jury.
Dale
Springer testified that in March 2016 he lived in an
apartment at Chateau Orleans in Muscle Shoals, Alabama. In
the early morning hours of March 2, sometime shortly after
midnight, Springer went outside to smoke a cigarette. He saw
a white Dodge pickup truck pull into the parking lot of
Chateau Orleans and back into a parking space. Two men got
out of the truck. Another vehicle came into the parking lot,
and the driver of the white pickup truck spoke with the
driver of the other vehicle before that vehicle sped off. The
two men who had gotten out of the pickup truck left the truck
parked at Chateau Orleans and began walking "at a fast
pace" across a parking lot in the direction of Midland
Avenue. Later that same morning the pickup truck was still in
the parking lot of Chateau Orleans, so Springer notified the
police.
Det.
Holland testified that, after interviewing Putnam on March 2,
he began looking for Dewayne Austin Hammonds and
De'Vontae Bates. Det. Holland located Hammonds and Bates,
and on March 4 Hammonds viewed the surveillance video from
the apartment complex and identified Young as the driver of
the white pickup truck and Capote as the passenger of the
truck. Hammonds also provided Hubbard's name and home
address to Det. Holland. Hubbard's house was located
about one block from Chateau Orleans, where the white pickup
truck had been found two days earlier. DNA retrieved from a
soda can found in the truck matched DNA from a swab taken
from Young. DNA from a cigarette butt found in the truck
matched DNA from a swab taken from Capote.
Shawn
Settles testified that he was an inmate in the Colbert County
jail from August 22, 2015, to May 17, 2016, and that at some
point he and Hubbard became cellmates. Capote was placed in
the next cell block over. Settles testified that he overheard
Hubbard and Capote discussing what story they would tell
about Freeman's murder. Settles advised Hubbard to send
notes to Capote's cell so that they would not be
overheard talking to each other, and Settles helped Hubbard
and Capote pass notes to each other. Settles testified that
he told Hubbard that Hubbard needed to tell him everything
about the case so that Settles could help Hubbard and Capote
come up with a defense.
Hubbard
told Settles that Bates began messaging Freeman about buying
or selling drugs to set up Freeman so that they could kill
him, because Hammonds had told Hubbard that it was Freeman
who had stolen the Xbox from Hubbard's house. Settles
testified that, although Hubbard initially told him that he
was at home when the shooting occurred, Hubbard later told
Settles that he, Young, Capote, and Hamm had gotten into a
white pickup truck that Capote had stolen. Hubbard told
Settles that Young was driving and that Capote was in the
front passenger seat and that Hubbard was in the backseat
with Hamm. Hubbard told Settles that he was in the truck at
the time of the shooting and that he was "scooted over
in the middle a little bit so I [knew] nobody could see
me." (R. 493.) Settles testified that Hubbard told him
that Young and Capote "got out, walked up to the car,
and unloaded on the car right through the back." (R.
495.)
Hubbard
told Settles that after the shooting they went to Chateau
Orleans near Hubbard's house, and he told Settles that he
and Capote had buried the SKS rifle that was used in the
shooting on some land in Franklin County that was owned by
Hubbard's family. Settles offered to have his son get the
gun and wipe off any fingerprints and bury it in a different
location to frame Bates for the murder, so Hubbard gave
Settles specific directions to where the gun was buried.
Settles provided the directions to the police, and that same
day law-enforcement officers located the SKS rifle exactly
where Settles had told them Hubbard said it would be. The
State introduced at trial one of the jailhouse notes that had
been passed from Hubbard to Capote. In it Hubbard tells
Capote that "they don't know shit what really went
down" and he instructs Capote, "don't let
nobody no what we're doin[g] or talkin[g] about."
(State's Exhibit 91.) Settles testified at trial that he
had been convicted of second-degree robbery and fraudulent
use of a debit card and that, in exchange for his truthful
testimony at trial, the State had agreed to recommend a
sentence of 15 years on his robbery conviction and 31 months
on his fraudulent-use-of-a-debit-card conviction.
Nicholas
Drake, a forensic scientist in the firearms and toolmarks
section of the Alabama Department of Forensic Sciences,
testified that the 15 7.62X39-millimeter shell casings found
at the scene that were sent to him for testing were fired
from the SKS rifle recovered in Franklin County, and he
testified that the projectiles that were taken from
Freeman's body during the autopsy had been fired from the
SKS rifle.
On
August 11, 2016, the Colbert County grand jury returned a
two-count indictment against Hubbard.
"Count I: [Hubbard] did intentionally cause the death of
Ki-Jana Freeman by shooting the said Ki-Jana Freeman with a
gun while the said Ki-Jana Freeman was in a vehicle, in
violation of 13A-5-40(a)(17) of the Code of Alabama, against
the peace and dignity of the State of Alabama.
"Count II: [Hubbard] did, with intent to cause serious
physical injury to another person, to-wit: Ki-Jana Freeman,
did cause serious physical injury to another person, to-wit:
Tyler Blythe, by means of a deadly weapon or dangerous
instrument, to-wit: a gun, in violation of 13A-6-20 of the
Code of Alabama, against the peace and dignity of the State
of Alabama."
(C. 64.) The trial proceedings began on June 18, 2018. After
the State rested, Hubbard moved for a judgment of acquittal,
which the circuit court denied. The jury found Hubbard guilty
of capital murder and first-degree assault. Hubbard filed a
motion for a new trial, which the circuit court denied.
Hubbard timely filed a notice of appeal.
I.
Hubbard
argues that the circuit court erred in denying his motion for
a change of venue because, he says, the publicity surrounding
his case and his codefendants' cases was such that it
could not be reasonably expected that he would receive a fair
and impartial trial in Colbert County. (Hubbard's brief,
pp. 39-40.)
A
defendant seeking a change of venue may file a motion for
change of venue with the circuit court. Rule 10.1, Ala. R.
Crim. P. To succeed on a motion for a change of venue, the
defendant must prove "that there existed actual
prejudice against the defendant or that the community was
saturated with prejudicial publicity." Woodward v.
State, 123 So.2d 989, 1049-50 (Ala.Crim.App.2011)
(quoting Ex parte Grayson, 479 So.2d 76, 80
(Ala.Crim.App.1985)). The defendant bears the burden of
showing that he cannot reasonably expect to receive "a
fair and impartial trial and an unbiased verdict" in the
county in which the defendant is set to be tried. Rule 10.1,
Ala. R. Crim. P.
Although
it is unclear whether Hubbard contends on appeal that actual
prejudice against him existed, in his brief Hubbard states
that the fact that some of the jury veniremembers had heard
about Hubbard's case or the cases of Hubbard's
codefendants "shows the existence of bias in the
community and demands that the venue of the case should have
been changed." (Hubbard's brief, p. 40.) Hubbard
offers no other facts or argument supporting a claim of
actual prejudice.
"To find the existence of actual prejudice, two basic
prerequisites must be satisfied. First, it must be shown that
one or more jurors who decided the case entertained an
opinion, before hearing the evidence adduced at trial, that
the defendant was guilty .... Second, these jurors, it must
be determined, could not have laid aside these preformed
...