Hubbard v. State

926 S.W.2d 663, 328 Ark. 658, 1997 Ark. LEXIS 328
CourtSupreme Court of Arkansas
DecidedMay 27, 1997
DocketCR 96-1534
StatusPublished
Cited by4 cases

This text of 926 S.W.2d 663 (Hubbard v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hubbard v. State, 926 S.W.2d 663, 328 Ark. 658, 1997 Ark. LEXIS 328 (Ark. 1997).

Opinion

Robert L. Brown, Justice.

Appellant Marcus Hubbard was convicted of first-degree murder for the shooting death of Bumble Carroll and sentenced to hfe imprisonment. He raises three points for reversal, none of which has merit. We affirm.

Hubbard was tried once before for this same offense, but the trial court declared a mistrial because the jury could not reach a verdict. In the second trial, Brenda Bell was the first witness for the State. She testified that she was Kimble Carroll’s girlfriend and that on January 12, 1994, she was five months pregnant with his child. On that date at about 11:00 p.m., she and Carroll were in her apartment in North Little Rock and verbally fighting about his consumption of alcohol. Bell decided to leave her apartment and was not wearing a coat. Because it was a cool evening, Carroll followed with a coat in hand and tried to convince her to put the coat on and return to the apartment. She testified that by the time the two had walked down the block and crossed the street, Carroll had talked her into returning to the apartment. As they were in the process of returning to the apartment, they saw Hubbard and Marcus Talley on the other side of the street.

Hubbard crossed the street to where Bell and Carroll were standing. He asked the pair what was wrong, and he told Carroll to give Bell the coat he was carrying. Bell then asked Hubbard if he had seen her brother, and Hubbard answered that if he saw her brother, he would tell him that Bell was looking for him. Bell began to cross the street, but Carroll waited because a car was approaching. Marcus Talley in turn began to walk across the street toward Carroll and Hubbard, when Bell heard shots and turned to see Hubbard, standing at arms’ length from Carroll and shooting him in the back. She testified that Carroll turned to his assailant and asked: “[W]hat did I do[?]” Hubbard then shot Carroll several more times, after responding: “[Y]ou ain’t worth it . . . .” Bell testified that she heard a total of five or six shots and was certain that Hubbard was the trigger man. Hubbard and Talley then ran away.

Marcus Talley also testified for the State. He related that on the evening of January 12, 1994, Hubbard arrived at a mutual friend’s house with a .38 caliber revolver. Hubbard and Talley left the house, and as they walked down the street, they approached Bell and Carroll during their altercation. Talley stated that he heard Hubbard tell Carroll to give her the jacket back and heard Bell ask Hubbard to go get her brother. Talley stated that he began walking away from the group when he heard shots. He testified that he heard Carroll exclaim: “[Wjhat the hell [is] going on.” When he turned to look, he saw shooting and ran. He specifically denied shooting Carroll.

Dr. William Sturner, Chief Medical Examiner at the Arkansas State Crime Laboratory, testified that he performed the autopsy on the victim and stated that five bullets were removed from Carroll’s body. He further stated that although Carroll had a blood-alcohol content of .25 percent, he concluded that the cause of his death was multiple gunshot wounds, which resulted in massive internal bleeding.

Ann Hoff, a criminalist in the Trace Evidence Section of the Arkansas State Crime Laboratory, performed a gunshot residue test on Carroll’s coat and determined that Carroll had been shot at least once and possibly twice in the back at close range. She opined that the distance was close enough to be contact shots.

The defense offered testimony from Kimberly Hyams, a licensed psychological examiner. She testified that Bell had been under her care prior to the murder in connection with a suicide attempt that followed a previous miscarriage and that Bell had been prescribed antipsychotic medication. She explained that Bell had been suffering occasional auditory hallucinations, usually in the form of hearing an imaginary baby cry.

Two witnesses testified for the defense that Marcus Talley was carrying a pistol on the night of the murder. Hubbard also testified on his own behalf. He explained that on the night of the shooting, he was 18 years old. He testified that he met Talley that evening, and the two men were walking to a nearby grocery store when they encountered Bell and Carroll, who were having a loud argument. Hubbard explained that he and Talley had decided to leave until Carroll began using profanity. Hubbard stated that Talley was already upset, and he saw Talley turn around and begin shooting Carroll. Hubbard admitted that he fled the scene. He also admitted that he gave a false name to police detectives when he was arrested. He stated that he did this because at that time, he was awaiting sentencing on a guilty plea for possession of cocaine with intent to deliver.

The jury returned a guilty verdict for first-degree murder, and after the sentencing phase, Hubbard was sentenced to life imprisonment.

I. Hearsay Statement

For his first point, Hubbard claims that the trial court erred in disallowing his testimony that the victim owed Marcus Talley money. The theory of the case for the defense was that Talley was the person who shot Carroll. To prove that theory, Hubbard attempted to show a motive based on a debt owed by Carroll to Talley which led to the killing. The following colloquy ensued during Hubbard’s direct examination:

DEFENSE COUNSEL: Why was Mr. Talley upset?
HUBBARD: Because Mr. Carroll owed him some.
PROSECUTOR: Your Honor, I’m going to object at this time. Calls for speculation of the witness.
THE COURT: Approach.
DEFENSE COUNSEL: Mr. Talley has told him.
THE COURT: That’s hearsay. Sustain the objection.

At this point, the direct examination of Hubbard by defense counsel continued without objection or further comment. Hubbard went on to testify that because Talley was upset, he started shooting Carroll.

Hubbard contends on appeal that the trial court erred in excluding his testimony about what Talley told him concerning Carroll’s debt because it was for the purpose of proving motive and ill will on the part of Talley and not to establish the truth of the matter asserted. Hubbard cites us to the case of Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993), in support of his contention.

We do not reach the merits of this argument. It is a fundamental rule that an issue not raised before the trial court may not be raised for the first time on appeal. Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997); Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). In this case, the prosecutor objected to Hubbard’s testimony about what Carroll owed Talley on the basis that it called for speculation. Defense counsel responded to the speculation argument at the bench conference by asserting that Talley told him about the debt, but the trial court sua sponte sustained the prosecutor’s objection on hearsay grounds.

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Related

Hubbard v. Hobbs
2014 Ark. 527 (Supreme Court of Arkansas, 2014)
Ru'nnel v. State
421 S.W.3d 324 (Court of Appeals of Arkansas, 2012)
Barnett v. State
53 S.W.3d 527 (Supreme Court of Arkansas, 2001)

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Bluebook (online)
926 S.W.2d 663, 328 Ark. 658, 1997 Ark. LEXIS 328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-state-ark-1997.