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Hubbard v. State

Alabama Court of Criminal Appeals

October 25, 2019

Thomas Hubbard
v.
State of Alabama

          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 ...

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