Opinion
CR-17-1122
10-25-2019
Thomas HUBBARD v. STATE of Alabama
Charlie Andrew Bottoms, Jr., Florence, for appellant. Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
Charlie Andrew Bottoms, Jr., Florence, for appellant.
Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.
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 and to life in prison for the first-degree-assault conviction. 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.
The State sought the death penalty for Hubbard's capital-murder conviction, but the jury, by a vote of 10-2, did not find the existence of an aggravating circumstance.
For the capital-murder conviction the circuit court ordered Hubbard to pay a $50 crime victims compensation assessment, a $20,000 fine, and court costs. For the first-degree-assault conviction the circuit court ordered Hubbard to pay a $50 crime victims compensation assessment, a $5,000 fine, and court costs. (C. 370; R. 1250-52.)
We address the issues on appeal in a different order than Hubbard discusses them in his brief.
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 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.
Facebook Messenger is an instant-messaging tool that allows users to send messages in real time to other Facebook users. The messages are sent and received on users' mobile devices.
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. 3d 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 opinions and ‘render[ed] a verdict based on the evidence presented in court.’ "
Hunt v. State, 642 So. 2d 999, 1043 (Ala. Crim. App. 1993) (quoting Coleman v. Zant, 708 F. 2d 541, 544 (11th Cir. 1983) ). Thus, to the extent that Hubbard argues the existence of actual prejudice, his claim fails.
We next consider whether the "presumed prejudice" standard affords Hubbard the relief he requests.
"In Blanton [v. State, 886 So. 2d 850 (Ala. Crim. App. 2003),] we discussed the enormous burden that the presumed-prejudice standard imposes on a defendant. We stated:
" ‘For prejudice to be presumed under this standard, the defendant must show: 1) that the pretrial publicity was prejudicial and inflammatory and 2) that the prejudicial pretrial publicity saturated the community where the trial was held. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985). Under this standard, a defendant carries an extremely heavy burden of proof.
" ‘ "....
" ‘ "In determining whether the ‘presumed prejudice’ standard exists the trial court should look at ‘the totality of the surrounding facts.’ Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984) ; Murphy v. Florida, 421 U.S. 794, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975) ; Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). The presumptive prejudice standard is ‘rarely’ applicable, and is reserved for only ‘extreme situations’. Coleman v. Kemp, 778 F.2d at 1537. ‘In fact, our research has uncovered only a very few ... cases in which relief was granted on
the basis of presumed prejudice.’ Coleman v. Kemp, 778 F.2d at 1490.
" ‘ " ‘... [T]he burden placed upon the petitioner to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.’ Coleman v. Kemp, 778 F.2d at 1537. ‘Prejudicial’ publicity usually must consist of much more than stating the charge, and of reportage of the pretrial and trial processes. ‘Publicity’ and ‘prejudice’ are not the same thing. Excess publicity does not automatically or necessarily mean that the publicity was prejudicial.
" ‘ "....
" ‘ "... In order to meet the burden of showing the necessity for a change of venue due to pretrial publicity on the grounds of community saturation, ‘the appellant must show more than the fact "that a case generates even widespread publicity." ’ Oryang v. State, 642 So. 2d 979, 983 (Ala. Cr. App. 1993), quoting, Thompson v. State, 581 So. 2d 1216, 1233 (Ala. Cr. App. 1991), cert. denied, [502] U.S. [1030], 112 S. Ct. 868, 116 L. Ed. 2d 774 (1992)."
Blackmon v. State, 7 So. 3d 397, 411–13 (Ala. Crim. App. 2005). A circuit court's ruling on a motion for a change of venue is reviewed for an abuse of discretion. Woodward, 123 So. 3d at 1049-50 ; see also Joiner v. State, 651 So. 2d 1155, 1156 (Ala. Crim. App. 1994) ("A trial court is in a better position than an appellate court to determine what effect, if any, pretrial publicity might have in a particular case.").
Hubbard filed a motion for a change of venue before his trial began, arguing that the extensive and "highly prejudicial" pretrial coverage of the events leading up to Hubbard's arrest, as well as the extensive coverage of the trials and sentencing of two of his codefendants, entitled him to a change of venue. Hubbard provided no documentation to support his motion for a change of venue, and at the hearing on the motion, Hubbard argued only that the "overwhelming media coverage" about Hubbard's case--particularly in light of "the two previous trials that have happened within the last four months where two people were convicted and sentenced to death"--had "the possibility of tainting the jury pool." (R. 85-86.) Hubbard did not offer any evidence at the hearing. Because Hubbard presented no evidence to support his motion for a change of venue, we have no evidence--such as newspaper articles or transcripts of media coverage--to review on appeal. Bare allegations, without more, are insufficient to prove community saturation. Lee v. State, 898 So. 2d 790, 867 (Ala. Crim. App. 2001) (evidence was insufficient to show media saturation where the defendant did not attach copies of the newspaper articles or transcripts of the broadcasts that he referenced in his motion for a change of venue).
There is also no merit to Hubbard's contention that pretrial publicity possibly tainted the jury pool. During voir dire there were 11 potential jurors who indicated that they knew something about the case. (R. 141-48.) Of those 11 potential jurors, only one, J.F., sat on the jury. The extent of J.F.'s knowledge was ascertained during group voir dire and during individual voir dire:
"[J.F.]: ... I'm a mail carrier and I deliver mail at Spring Creek Apartments. And when I heard about it, I do remember, you know, looking through and I did not recognize any of the names as people I delivered mail to.
"Mr. Brown [the State]: So anything about that is just the fact that you deliver
mail there would not affect your ability to be fair?
"[J.F.]: No.
"Mr. Brown: To both sides?
"[J.F.]: To both sides."
(R. 144-45.)
"The Court: ... What was the source of your knowledge about the case?
"[J.F.]: Probably the newspaper.
"....
"Mr. Poss [defense counsel]: Hello, Ms. [F.]. You have read about this in the paper?
"[J.F.]: The reason I remember is because I deliver mail to Spring Creek so I read the names to see if I knew anybody. And I hate to say this, but I did not know anybody so I could not tell you what the names were.
"Mr. Poss: Have you read any articles besides that initial one talking about what happened at Spring Creek like when the trial was going on here a few months ago?
"[J.F.]: I did not keep up with it."
(R. 205.) The fact that J.F. had heard about the case is insufficient evidence of community saturation. See Whitehead v. State, 777 So. 2d 781, 801 (Ala. Crim. App. 1999) (holding that the fact that many of the jurors in the jury pool had heard about the case was alone insufficient to presume prejudice); Blackmon, 7 So. 3d at 413 (holding that defendant's claim that the community was saturated with pretrial publicity failed where "[o]nly a handful" of the prospective jurors had heard about the case). And, although Hubbard brought to the circuit court's attention--during the hearing on the motion for a change of venue that took place on the second day of jury selection--that Hubbard's case "was on the front page" of the newspaper that morning, the record shows that before the jury was struck and multiple times throughout the trial, the circuit court instructed the jurors not to read the newspaper or watch the news. Nothing in the record suggests that any juror disregarded the circuit court's instructions or was influenced in any way by publicity of the case. The record is simply devoid of any evidence that any juror was prejudiced against Hubbard or that media attention so inflamed or so saturated the community that Hubbard could not receive a fair and impartial trial in Colbert County. Thus, prejudice is not presumed, and the circuit court did not err in denying Hubbard's motion for a change of venue.
II.
Hubbard argues that because the State failed to offer the testimony of the Colbert County coroner, Carlton Utley, regarding Utley's possession and handling of Freeman's body, the State failed to establish the chain of custody for Freeman's body and, thus, Hubbard argues, the testimony of Dr. Valerie Green and the projectiles recovered from Freeman's body during the autopsy should not have been admitted into evidence. He argues that, if the chain of custody was not established for Freeman's body--and by extension, for the projectiles removed from Freeman's body during the autopsy--then any evidence derived from the projectiles should have been excluded, including the testimony of Nicholas Drake, who matched the projectiles retrieved from Freeman's body to the SKS rifle found on the land in Franklin County belonging to Hubbard's family.
Carlton Utley died before trial. (R. 878.)
Hubbard did not object at trial to the admission of any of the evidence or testimony to which he now objects. When the projectiles from Freeman's body were offered by the State, Hubbard requested that the exhibit sticker from one of his codefendant's trials be covered up, but he did not object to the admission of the projectiles.
"Mr. Brown: Judge, we would offer all of these at this time.
"Mr. Poss: Judge, may we approach?
"The Court: Yes.
"(The following occurred at the bench outside the hearing of the jury.)
"Mr. Poss: For the record, these are also marked--they are also marked with another case. We need to cover them--
"Mr. Brown: We will before it goes to the jury.
"Mr. Poss: Other than that, I have no objection."
(R. 846.) (Emphasis added.) Hubbard made no objections during Drake's testimony, and the only objections Hubbard made during Dr. Green's testimony were objections to certain photographs the State offered; those objections, however, were unrelated to any chain-of-custody issues. It is well settled that to be preserved for appellate review, objections to the introduction of evidence must be raised at trial.
" ‘[I]n order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court.’ Goodson v. State, 540 So. 2d 789, 791 (Ala. Crim. App. 1988). ‘When a timely objection at the time of the admission of the evidence is not made, the issue is not preserved for this Court's review.’ Ziglar v. State, 629 So. 2d 43, 47 (Ala. Crim. App. 1993)."
Chaney v. State, 892 So. 2d 466, 468 (Ala. Crim. App. 2004). See also Slaughter v. State, 411 So. 2d 819 (Ala. Crim. App. 1981) (holding that, because the appellant "did not object or move to exclude the specific evidence, there is no error preserved for our review."). Because Hubbard did not object at trial to the admission of any of the evidence or testimony to which he now objects, that issue is not preserved for this Court's review.
III.
We next consider whether there was sufficient evidence to support Hubbard's conviction for capital murder. Hubbard argues that the State did not present any evidence indicating that he intended for Freeman to be shot while Freeman was in a vehicle or that Hubbard knew that Capote or Young intended to shoot Freeman while Freeman was in a vehicle. Thus, argues Hubbard, the State did not establish that Hubbard was guilty of all the elements of capital murder because, he says, the State was required under § 13A-5-40(c), Ala. Code 1975, to prove that Hubbard intended for Freeman to be shot while in a vehicle. This argument has no merit.
" ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ " Ballenger v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998) (quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim. App. 1984) ). " ‘The test used in determining the sufficiency of the evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ " Nunn v. State, 697 So. 2d 497, 498 (Ala. Crim. App. 1997) (quoting O'Neal v. State, 602 So. 2d 462, 464 (Ala. Crim. App. 1992) ).
" ‘ "When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision." ’ Farrior v. State, 728 So. 2d 691, 696 (Ala. Crim. App. 1998), quoting Ward v. State, 557 So. 2d 848, 850 (Ala. Crim. App. 1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978)."
Gavin v. State, 891 So. 2d 907, 974 (Ala. Crim. App. 2003), cert. denied, 891 So. 2d 998 (Ala. 2004).
" ‘ " ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So. 2d 857, cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’ Cochran v. State, 500 So. 2d 1161, 1177 (Ala. Cr. App. 1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So. 2d 1179 (Ala. 1985)." ’
" Hollaway v. State, 979 So. 2d 839, 843 (Ala. Crim. App. 2007) (quoting White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989) ).
" ‘ "In reviewing a conviction based on circumstantial evidence, this court must view the evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir. 1974) ; United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971) ; Clark v. United States, 293 F.2d 445 (5th Cir. 1961)." ’
" Bradford v. State, 948 So. 2d 574, 578–79 (Ala. Crim. App. 2006) (quoting Cumbo v. State, 368 So. 2d 871, 874–75 (Ala. Crim. App. 1978) )."
Chambers v. State, 181 So. 3d 429, 434 (Ala. Crim. App. 2015).
Hubbard was convicted of capital murder under § 13A-5-40(a)(17), Ala. Code 1975. Section 13A-5-40(a)(17) provides that murder "committed by or through the use of a deadly weapon while the victim is in a vehicle" is a capital offense. Hubbard was tried and convicted of capital murder under an accomplice theory of liability. Section 13A-2-23, Ala. Code 1975, provides:
"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"(1) He procures, induces or causes such other person to commit the offense; or
"(2) He aids or abets such other person in committing the offense ...."
This Court has explained the type of assistance by a defendant that will support a conviction based on accomplice liability.
"The applicable test for complicity is whether a defendant, with intent to promote or assist in the perpetration of an offense did aid or abet such other person
in committing the offense. § 13A-2-23, Ala. Code (1975). The thrust is to place liability on one who has the more positive mental state of promoting or actively assisting in the perpetration of an offense. Besides the mere presence of appellant at the scene, the State must show some evidence that appellant either recruited, helped, or counseled in preparing the crime, or undertook some part in its commission. Pugh v. State, 42 Ala. App. 499, 169 So. 2d 27 (1964). Aiding and abetting comprehends all assistance rendered by acts, or words of encouragement, or support or presence, actual or constructive, to render assistance should it become necessary, and no particular acts are necessary. Watkins v. State, 357 So. 2d 156 (Ala. Crim. App. 1977), cert. denied, 357 So. 2d 161 (Ala. 1978)."
Prantl v. State, 462 So. 2d 781, 783 (Ala. Crim. App. 1984).
The evidence presented by the State, viewed in the light most favorable to the prosecution, sufficiently supports the jury's verdict finding Hubbard guilty of capital murder based on a theory of accomplice liability. The State presented evidence indicating that on March 1, 2016, Hubbard, who was upset that his house had been burglarized, called a meeting of the Almighty Imperial Gangsters and told everyone at that meeting that he was going to find whoever broke into his house and kill them. Hubbard learned from Hammonds that Freeman might have taken the Xbox game console from Hubbard's house.
There was a discussion at the meeting of using an SKS rifle, and Hubbard mentioned buying ammunition for the SKS rifle. The State produced evidence indicating that Megan Bryant, who had been at Hubbard's house that day, purchased ammunition for an SKS rifle a little after 9:00 p.m. on March 1.
The State presented evidence indicating that, while Bates was communicating with Freeman on Facebook Messenger to set up Freeman to be killed, Hubbard, Young, Capote, and Hamm left Hubbard's house in a white pickup truck and headed to the Spring Creek Apartments, where Bates had told Freeman he would meet him. All information Bates learned from Freeman--including the type of vehicle Freeman was driving--was passed along to someone in the pickup truck. Settles testified that Freeman told him that Bates began messaging Freeman to set up Freeman so that they could kill him, and Settles testified that Freeman admitted that he went with Capote, Young, and Hamm to the Spring Creek Apartments and that he was in the pickup truck at the time Young and Capote got out of the truck and "unloaded" on Freeman's car.
Thus, the jury could have found that, when Hubbard told members of his gang that we wanted Freeman killed and asked for their help, provided the SKS rifle to be used to kill Freeman, told members of his gang that they needed ammunition for the SKS rifle, and rode with Capote, Young, and Hamm to the Spring Creek Apartments where Hubbard knew that Bates had told Freeman to meet him, Hubbard--with the intent to promote or assist in Freeman's murder--procured, induced, or caused Capote and Young to murder Freeman or aided and abetted them in murdering Freeman.
Hubbard's contention that the State was required to prove that he had the specific intent for Freeman to be shot while Freeman was in a vehicle is meritless. Section 13A-5-40(c), Ala. Code 1975, provides:
"A defendant who does not personally commit the act of killing which constitutes the murder is not guilty of a capital
offense defined in subjection (a) of this section unless that defendant is legally accountable for the murder because of complicity in the murder itself under the provisions of Section 13A-2-23, in addition to being guilty of the other elements of the capital offense as defined in subsection (a) of this section."
Based on the definition of murder in § 13A-6-2(a)(1), and the list of capital offenses in § 13A-5-40(a), it is clear that to be guilty of capital murder a defendant must have intended the death of the victim. But it does not follow that the State must prove that the defendant intended every attendant circumstance that made the offense capital. Rather, § 13A-5-40(a) requires only that, in situations involving accomplice liability, the State must prove not only that the defendant was "guilty of the other elements of the capital offense"--that is, the State must prove the existence of the circumstance or event that made the murder a capital offense--but also that the defendant was complicit "in the murder itself." Here, the State produced evidence by which the jury could have found that Hubbard intended Freeman's death and that Freeman was killed by or through the use of a deadly weapon while Freeman was in his vehicle. Thus, there was sufficient evidence to support Hubbard's conviction for capital murder.
Also, the State produced ample evidence that Hubbard knew that Freeman would be shot while Freeman was in a vehicle. There was testimony at trial that Hubbard knew that Freeman was being lured to the Spring Creek Apartments to be killed and that with this knowledge Hubbard went with Capote, Young, and Hamm to the Spring Creek Apartments to meet Freeman. After Hubbard left in the pickup truck heading to the Spring Creek Apartments, Bates relayed to someone in the pickup truck that Freeman would be arriving at the Spring Creek Apartments in a Blue Mustang automobile. Thus, the State produced evidence by which the jury could have found--had such a finding been necessary--that Hubbard knew, before the shooting took place, that Capote or Young intended to shoot Freeman while Freeman sat in his car in the parking lot of the Spring Creek Apartments. See Loper v. State, 469 So. 2d 707, 710 (Ala. Crim. App. 1985) ("The question of intent is hardly ever capable of direct proof. Such questions are normally questions for the jury.").
There was sufficient evidence of all the elements of capital murder to support Hubbard's capital-murder conviction.
IV.
Hubbard argues that, to convict him of the first-degree assault of Tyler Blythe, the State was required to prove that Hubbard "had the knowledge that the principal was engaging in or is about to engage in a specific crime, in this case the assault of Tyler Blythe." (Hubbard's brief, pp. 24-25.) Hubbard says that the State was required to show that he "had a specific intent to injure, harm and/or assault the victim Tyler Blythe." (Hubbard's brief, p. 25.) Because the State did not produce any evidence indicating that Hubbard, Young, or Capote knew that Blythe would be in the vehicle with Freeman, Hubbard argues that there was insufficient evidence to convict him of first-degree assault. This argument is without merit.
"A person commits the crime of assault in the first degree if: (1) With intent to cause serious physical injury to another person, he or she causes serious physical injury to any person by means of a deadly weapon or a dangerous instrument." § 13A-6-20(a), Ala. Code 1975. (Emphasis added.)
"The doctrine of transferred intent is applicable in prosecutions for assault and battery.[ ] See generally, 6 Am. Jur. 2d, Assault and Battery, § 18. ‘... [T]he guilt of an accused who, intending to injure one person, accidentally injures another, is to be determined as if the accused had injured his intended victim. Gilbert v. State, 20 Ala. App. 28, 100 So. 566 ; Lewis v. State, 22 Ala. App. 108, 113 So. 88.’ Bradberry v. State, 37 Ala. App. 327, 67 So. 2d 561, 564 (1953). ‘Not only is intent transferred, but also the degree of the crime and any defenses that would be valid if the intended victim had been hit.’ Prosser, Transferred Intent, 45 Tex. L. Rev. 650, 653 (1967)."
Mathis v. State, 497 So. 2d 231, 232–33 (Ala. Crim. App. 1986). And, under § 13A-2-5(b), Ala. Code 1975:
"A person is nevertheless criminally liable for causing a result if the only difference between what actually occurred and what he intended, contemplated or risked is that:
"(1) A different person or property was injured, harmed or affected; or
"(2) A less serious or less extensive injury or harm occurred."
First, as discussed in Part III above, the State presented sufficient evidence from which the jury could have found that Hubbard had the specific intent for Freeman to be killed. The State also presented evidence indicating that Hubbard intended for Freeman to be killed with an SKS rifle. Hubbard provided the SKS rifle that was used to shoot Freeman and, on the day of the shooting, Hubbard mentioned the need to purchase ammunition for the SKS rifle. The State presented evidence indicating that about two hours before Freeman was shot with the SKS rifle, Megan Bryant left Hubbard's house to purchase ammunition for the SKS rifle. Clearly, then, not only did Hubbard intend for Freeman to be killed, but the State presented evidence that Hubbard intended for Freeman to be killed with the SKS rifle kept at Hubbard's house. The State also presented evidence indicating that, as Blythe sat in Freeman's car at the Spring Creek Apartments, Blythe was shot in the shoulder, back, and legs and sustained serious injury that required him to undergo surgery and caused him to be unable to walk without assistance for a few months after the shooting. Under a theory of accomplice liability, the State produced sufficient evidence that, with the intent to kill Freeman, Hubbard caused serious physical injury to Blythe by means of a deadly weapon. The fact that Hubbard or the shooter may not have known of Blythe's presence in Freeman's vehicle or may not have intended for Blythe to be injured during the shooting is, under § 13A-6-20(a), Ala. Code 1975, irrelevant to a determination of the sufficiency of the evidence to convict Hubbard for the first-degree assault of Blythe.
V.
Hubbard contends that the circuit court erred when it applied the HFOA to sentence Hubbard to life in prison for his first-degree-assault conviction based on Hubbard's four prior felony convictions from Illinois. Hubbard argues that it was improper for the circuit court to consider his prior convictions because no factual basis was established that the Illinois convictions were based on conduct that would have been felonies had they been committed in Alabama; that the record does not clearly reflect that Hubbard was represented by counsel for each prior conviction; and that the convictions were not properly authenticated as required by § 12-21-70, Ala. Code 1975.
At Hubbard's sentencing hearing on August 14, 2018, the State moved to admit "certified copies of [Hubbard's] convictions for manufacturing and delivering of cannabis from the State of Illinois, County of Creek County." The State's four exhibits were admitted without objection. (R. 1249-52.) Based on Hubbard's prior felonies, the circuit court sentenced Hubbard to life in prison on the first-degree-assault conviction. Hubbard did not argue, either in his motion for a new trial or at the hearing on that motion, that the circuit court should not have considered his prior felony convictions in sentencing him under the HFOA on his first-degree-assault conviction. (C. 405; R. 1252-56.) "The failure to object in the trial court to the State's method of proving or failure to prove prior convictions precludes consideration of that issue on appeal." Nichols v. State, 629 So. 2d 51, 57-58 (Ala. Crim. App. 1993) ; Nix v. State, 747 So. 2d 351, 356 (Ala. Crim. App. 1999) ("[T]he record does not reflect that the appellant objected to the use of the prior convictions on any ground at the sentencing hearing or in any post-trial motions. Because the appellant did not present these challenges to the use of his prior felony convictions for sentence-enhancement purposes to the trial court, they are not preserved for our review."). Because Hubbard did not object to the use of his prior felonies to enhance his sentence under the HFOA, this issue is not preserved for our review.
VI.
Finally, Hubbard argues that it is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution for him to receive a mandatory sentence of life imprisonment without the possibility of parole because he is, he says, intellectually disabled. Hubbard urges this Court to rely upon the reasoning of the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), to "require a broader analysis for the sentencing of the intellectually disabled and to reject mandatory life sentences without parole for the intellectually disabled." (Hubbard's brief, p. 37-38.)
The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
"Review on appeal is restricted to questions and issues properly and timely raised at trial." Newsome v. State, 570 So. 2d 703, 717 (Ala. Crim. App. 1989). "An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented." Pate v. State, 601 So. 2d 210, 213 (Ala. Crim. App. 1992). The fact that the issue that Hubbard now raises for the first time on appeal concerns a constitutional question does not rectify Hubbard's failure to raise this issue in the trial court. "[T]he rule against raising an issue for the first time at the appellate level applies even if the issues raised would present constitutional questions." Ex parte Clemons, 55 So. 3d 348, 351 (Ala. 2007) (quoting Ex parte Linnell, 484 So. 2d 455, 457 (Ala. 1986) ); see also Alonso v. State, 228 So. 3d 1093, 1099 (Ala. Crim. App. 2016). Because Hubbard did not argue below that a mandatory sentence of life imprisonment without the possibility of parole in his case violated the Eighth Amendment's prohibition against cruel and unusual punishment, that issue is not preserved for our review. Based on the foregoing, the judgment of the circuit court is due to be affirmed.
We note that, in asking this Court to reject mandatory life-imprisonment-without-the-possibility-of-parole sentences for those who are "intellectually disabled," Hubbard asserts that he is intellectually disabled. But, although Hubbard argued in the circuit court that he was intellectually disabled, the circuit court made no such finding. Before trial, the circuit court ordered Hubbard, upon motion by the State, to undergo an examination to assess whether Hubbard was competent to stand trial and to determine Hubbard's mental state at the time of the shooting. (C. 82, 85.) Dr. Glen King, a clinical and forensic psychologist, evaluated Hubbard in October 2016 and in December 2016 prepared a report in which Dr. King stated that it was his opinion that Hubbard "possesses the requisite ability to assist his legal counsel in his own defense and proceed with a reasonable understanding of the legal proceedings against him" and that it was his opinion that "[a]t the time of the alleged offenses [Hubbard] was not suffering from a serious mental illness or mental defect that would render him incapable of understanding the nature and quality of his actions or the wrongfulness of his acts." (C. 94-101.) Nearly a year-and-a-half later, Hubbard filed a "Motion to Prohibit the Death Penalty Because the Defendant is Intellectually Disabled," in which he argued that, under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the State should be prohibited from seeking the death penalty because he is, he said, intellectually disabled. (C. 279.) The circuit court held a hearing on the motion and denied the motion. (R. 89-119; C. 347.) Hubbard has not challenged the circuit court's ruling on that motion.
AFFIRMED.
Windom, P.J., and Kellum, McCool, and Cole, JJ., concur.