Hubbard v. State
| Docket Number: | 2003-KA-00142-COA Linked Case(s): 2003-CT-00142-COA ; 2003-KA-00142-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-11-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Armed robbery - Pre-trial identification - Funds for expert - Addressing jury - Eligibility for parole Judge(s) Concurring: King, C.J., Bridges and Southwick, P.JJ., Thomas, Lee, Chandler and Griffis, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-20-2002 Appealed from: Calhoun County Circuit Court Judge: Andrew K. Howorth Disposition: FINAL JUDGMENT GUILTY OF ROBBERY WITH A DEADLY WEAPON; SENTENCED TO THIRTY-FOUR YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: JAMES M. HOOD, III Case Number: 2001-108 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jeffrey Hubbard a/k/a Jeffrey Salley a/k/a Jeffery Hubbard a/k/a Jeffery Bernard Salley |
THOMAS RICHARD MAYFIELD
THOMAS E. ROYALS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Armed robbery - Pre-trial identification - Funds for expert - Addressing jury - Eligibility for parole |
| Summary of the Facts: | Jeffrey Hubbard was found guilty of armed robbery and was sentenced to thirty-four years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Pre-trial identification Hubbard argues that the court erred by denying his motion to suppress identification evidence, because both the pretrial and in-court identifications were made under circumstances likely to result in misidentification, i.e., the victims could not identify him as being one of the men who robbed them until after they saw his mug shot in the local newspaper approximately four months after the robbery occurred. Factors to be considered when determining whether an identification complies with due process include the opportunity of the witness to view the criminal at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. The robbers were in the victims’ home for fifteen to twenty minutes and spoke to the men as they entered and as they were robbing them. Although the victims were threatened with weapons, the record show that they were paying sufficient attention to what was going on around them. Although the description by the victims was general, it was reasonably adequate. The victims never wavered on their identifications. Even though the robbery occurred on June 15, 2001, and the identification on October 25, under the totality of the circumstances, there was sufficient evidence to support the court's admission of the identification evidence. Issue 2: Funds for expert Hubbard argues that the court erred by denying his pretrial motion for State funds to obtain his own personal expert in the field of psychiatry. Factors to be utilized in determining whether a defendant is entitled to the assistance of an expert witness to assist in the defense of his case include the private interest that will be affected by the action of the State, the government interest that will be affected if the safeguard is to be provided, and the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided. An evaluation of the defendant by a psychiatrist at Whitfield State Hospital satisfies these requirements. Here, Hubbard was sent to the Mississippi State Hospital for a mental evaluation and was evaluated as being criminally responsible at the time the alleged acts occurred. Issue 3: Addressing jury Hubbard argues that the court erred by not allowing him to address the jury. An accused has the right to waive the Fifth Amendment privilege against self-incrimination and does so when he takes the stand and argues the merits of the case or goes beyond the record when arguing his case. Hubbard essentially wanted to take the stand and speak to the jury for the purpose of contradicting the State’s witnesses while not being subject to cross-examination. After taking a lunch break and conferring with his attorney, Hubbard decided not to speak to the jury. Because Hubbard was allowed time to consider the consequences of his speaking to the jury and chose not to do so, there is no error. Issue 4: Eligibility for parole Hubbard argues that plain error occurred at trial when the prosecutor told the jury that Hubbard would be eligible for parole if convicted. Although the statements by the State during opening and closing arguments were erroneous, there is no plain error. The judge properly instructed the jury to find Hubbard guilty and set the term of penalty at life imprisonment, or find him guilty and not agree to fix the penalty, or find him not guilty. Parole was never an issue for the jury’s determination. |
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