"Alabama Executes 74-Year-Old Murderer." (August 5, 2004)

ATMORE, Ala. — A 74-year-old murderer became the oldest U.S. inmate put to death in decades Thursday after courts and the governor refused to stop his execution. James Barney Hubbard died by injection at 6:36 p.m. at Holman Prison near Atmore.

Hubbard was executed for the 1977 murder of 62-year-old Lillian Montgomery of Tuscaloosa. She was shot in the head and robbed after befriending Hubbard, who had been released from prison after serving 19 years for a 1957 killing.

A pale, white-haired Hubbard maintained eye contact with his daughter Barbara McKinney, who witnessed the execution from another room, until he died.

Montgomery's son, Jimmy Montgomery, who also witnessed the execution, said he was disappointed that Hubbard offered no last words or apology. "I didn't expect him to go as easy as he did today without saying something," Jimmy Montgomery said, adding that he did not forgive Hubbard and believed he deserved a harsher form of death.

Earlier Thursday, the Supreme Court voted 5-4 to deny a stay for Hubbard. His attorney contended the execution would amount to cruel and unusual punishment for someone so old and mentally incompetent. Gov. Bob Riley rejected a request to commute Hubbard's sentence for what he called a "heinous and violent" crime. "Justice has not been swift in this case, but justice must be delivered," Riley said.

According to the Coalition to Abolish the Death Penalty, Hubbard is the oldest person executed in the United States since 1941, when James Stephens of Colorado was executed at age 76.

In his filing with the Supreme Court, defense attorney Alan Rose said that although "Hubbard's age-based execution claim appears to raise a novel issue," it was in line with other claims of cruel and unusual punishment. The state in arguing for the execution said that "murderers especially repeat killers like Hubbard do not deserve `leniency' merely because their life of crime does not result in the imposition of a death sentence until later in life."

Hubbard, in his federal appeals, said he didn't speak up about his mental state and health sooner because the conditions didn't exist when he was younger. Court filings on his behalf say he has been diagnosed with dementia, along with other ailments. Hubbard appealed to the Supreme Court Wednesday after a federal appeals court denied his request for a stay. Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas voted to deny the stay. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer would have granted it.

ProDeathPenalty.Com

James Hubbard was sentenced to death in 1977 for the murder of Lillian Montgomery, whom he was living with after having been released from prison. Hubbard had served a 20 year sentence for a murder conviction, and called police to report a shooting on January 10, 1977. He said Lillian had shot herself at her home in Tuscaloosa, Alabama. She died as the result of three gunshot wounds, one to the face, one to the head, and one to the shoulder, a difficult accomplishment as a suicide.

Hubbard's execution by lethal injection for killing a Tuscaloosa woman who befriended him is set for Aug. 5 at Holman Prison near Atmore. Assistant Attorney General Clay Crenshaw said Hubbard has exhausted his appeals after 27 years, but he has been near execution before only to win a delay. Hubbard, who has maintained his innocence during the lengthy appeals, recently was moved from Donaldson Correctional Facility in Bessemer to Holman. Warden Grantt Culliver said Hubbard spends his time reading and watching television. He hasn't exercised outside, but he has participated in a prison religious group.

Bill Hayes, a Florida-based capital punishment historian, said Hubbard will be the oldest by far in the current series of executions that date to 1976. He said 24 inmates in their 60s have been executed nationwide in that period. The U.S. Supreme Court, in its 1976 landmark ruling, reinstated the death penalty by upholding new death penalty laws in Florida, Georgia, and Texas as constitutional. The court also held that the death penalty itself was constitutional under the Eighth Amendment of the U.S. Constitution and ended a 10-year moratorium on executions in which reforms were completed. Hayes said the oldest person executed in the 20th century was 83-year-old Joe Lee of Virginia in 1916, but Larry Traylor, a spokesman for the Department of Corrections in that state, said Lee's actual age was in dispute and he may have been 68. But there have been at least 16 others in their 70s and 80s executed, according to Hayes' research.

Nationwide, about 3,400 inmates await execution in the 38 states that allow capital punishment. A survey by The Associated Press in death-penalty states found at least two states - California and Arizona - with inmates in their 80s with no execution dates set. California has about 650 inmates on death row, the nation's most clogged. Arizona apparently has the nation's oldest - 88-year-old Viva Leroy Nash. Several other states have inmates in their 70s awaiting execution. The oldest inmate on Indiana's death row is Richard D. Moore, who turned 73 on June 5. On the only federal death row, also in Indiana, the oldest prisoner is 52 years old. In Florida, John Vining, 73, has been through the federal court system once and had new appeals denied by the Florida Supreme Court on May 20. William Cruse, 76, was convicted in the slayings of six people in 1987. However, he was declared mentally incompetent in 2002.

In Alabama, Hubbard's age is not an issue for Tuscaloosa County District Attorney Tommy Smith, who prosecuted Hubbard for the killing that put him on death row. Hubbard wasn't elderly when he killed and Smith said the issue is the "unconscionable delays" on appeals that allowed him to stay alive. "You need to get to a final point expeditiously," Smith said.

Hubbard first went to prison in 1957 for a second-degree murder conviction in the death of David Dockery in Tuscaloosa County. He was released in 1976 and killed again the next year. His second victim, 62-year-old store owner Lillian Montgomery, was shot three times and robbed of her gold and diamond wristwatch and about $500 in cash and checks. She had befriended Hubbard and "sponsored" him to gain his release in 1976, Smith said. Hubbard had moved into her home next door to the store she ran on U.S. Highway 82, according to court records. In a police statement, Hubbard said he had been drinking whiskey with Montgomery and claimed she committed suicide. Prosecutors introduced evidence that she couldn't have fired the fatal shots on Jan. 10, 1977.

Hubbard was twice convicted in her death. An appeals court overturned the first conviction. But he was again sentenced to death at retrial and last year the U.S. Supreme Court refused to review it. The victim's son, Jimmy Montgomery, 66, a Tuscaloosa businessman, said he and his sister plan to attend the execution. "I hope it will be over," Montgomery said. "He shot her with a pistol I'd given her." Another son, 58-year-old Johnny Montgomery, a Birmingham-area real estate agent, doesn't plan to witness the execution, saying he feels "powerless" over what goes on with Hubbard and has never communicated with him. "One time I could have taken care of this guy with my own hands if they let me," the younger brother said in a telephone interview. "God has given me peace with this. I have forgiven him."

UPDATE: A federal appeals court Wednesday refused to block the execution of the state's oldest death row inmate, a convicted killer who robbed and shot a woman who had befriended him. James Hubbard, 74, is scheduled to be executed by injection Thursday, despite pleas from his lawyers, who said he is too old and sick to be put to death. The 11th U.S. Circuit Court of Appeals denied their request for a stay. Hubbard contends that because of his "advanced age" and mental incompetence, his execution would be a form of cruel and unusual punishment. Hubbard is scheduled to die for the 1977 slaying of 62-year-old Lillian Montgomery, a Tuscaloosa woman who befriended him after he served a prison sentence for another killing. He was recently diagnosed with dementia; a psychologist concluded his condition may cause confusion and interfere with his ability to understand legal procedures, according to papers his attorneys filed in the appeals court. Hubbard also claims he is suffering from hepatitis, diverticulitis, hypertension and acute back pain. State's attorneys said his claims did not warrant a stay of the execution.

National Coalition to Abolish the Death Penalty

James Hubbard, AL - August 5, 2004 6:00 pm CST

The state of Alabama is scheduled to execute James Barney Hubbard, a white man, Aug. 5 for the 1977 death of his girlfriend, Lillian Montgomery in Tuscaloosa County. Mr. Hubbard, now 74 years old and suffering from prostate and colon cancer, will be the oldest American put to death since the reinstatement of executions.

There are approximately 19,000 murders per year in the United States. Approximately 75 people, primarily men, are executed every year. In other words, 0.4% of all murders end in execution. Who decides which of these murders merits death? Surely strapping an elderly man to a gurney and filling him with poison cannot be justice. Mr. Hubbard has lived on Alabama’s death row for 27 years. After Alabama’s death penalty statutes were found unconstitutional in 1980 he was retried in 1982 and again sentenced to death.

Lillian Montgomery was shot three times in the head, neck and shoulder. There were no eyewitnesses. During the penalty phase of trial, when the jury must decide between a sentence of life imprisonment and a sentence of death, the defense counsel did not present evidence of Mr. Hubbard’s history of alcoholism, borderline mental retardation, and his difficult life.

The state charged Mr. Hubbard’s pro-bono attorney $567.05 for copies of 1,091 pages of medical records. The sum was $0.50 per page, plus $17.50 for shipping and another $4.05 fee. Mr. Hubbard’s defense, upon receiving the transcript, filed a request for a 30-day extension to respond to the state’s motion to set an execution date. The request was denied.

Alabama Supreme Court Justice Douglas Johnstone wrote in his dissent that “this is the most consciencelessly regressive tax I have observed in my decades in and around Alabama politics. The least the court could do is grant a 30-day extension to compensate this inmate for the three months that he was deprived of these records.”

Unless Alabama governor Bob Riley grants clemency, an act of mercy that a rarity in an election year, Mr. Hubbard will be one of the 0.4% of persons who commit a murder and are executed. In an unprecedented effort, other death row inmates created a petition to the governor asking for mercy. The petition was intercepted in the prison mailroom and stopped.

Mr. Hubbard will be executed at 6 p.m. CST. Please keep him, his family, and the family of Lillian Montgomery in your thoughts. Please take a moment to send an e-mail to Gov. Riley urging him to stop this execution. Because Gov. Riley does not have a public e-mail address, please select the fax option.

Tuscaloosa News

"James Barney Hubbard Executed," by Anna Maria Della Costa. (August 5, 2004)

ATMORE - Dressed in a white prison uniform, strapped to a gurney with his arms outstretched, almost angelic, a silver-haired James Barney Hubbard died peacefully by lethal injection Thursday. At 6:36 p.m., the 74-year-old from Bibb County became the oldest person ever to be executed in the state of Alabama, and the oldest in the United States since 1976, the year the death penalty was reinstated. Outside Holman Correctional Facility, three women from a local Roman Catholic Church, one a nun named Sister Lillian, protested the execution with candles.

Hubbard, who had been on death row for more than 26 years for the 1977 slaying of Lillian Montgomery of Tuscaloosa, nodded that he understood when Warden Grantt Culliver read the death order at 6:13 p.m. The first drug was administered through intravenous lines in both arms at 6:17 p.m. Hubbard yawned twice, and fell asleep with his mouth slightly open.

"I tell you what, I would have liked to have seen the electric chair in use today, or maybe even a firing squad," said Jimmy Montgomery, the 66-year-old son of Lillian Montgomery. "He looked like he died too peacefully to me. I would have liked to have seen him suffer a little more, the way mama did. That would have given me a bit more satisfaction. But I am glad to see this part of our life end.”

Earlier in the day, shortly after Hubbard was served his last meal of two eggs over-medium, four pieces of bacon, sliced tomatoes, fried green tomatoes, pineapple slices with mayonnaise, white bread, a banana and a medium-sized V8 juice, the U.S. Supreme Court denied a stay of execution for Hubbard by a 5-4 vote.

Alabama Gov. Bob Riley, who under state law has the power to grant reprieves and commutations, said later that he had no intention of interfering with the execution. "It is a very sad day," said Alan D. Rose, Hubbard's attorney. "The state of Alabama has taken the life of a 74-year-old man. The U.S. Supreme Court did not do its job today. It could have saved a sick, frail man's life. It makes no sense.”

Through the execution, Montgomery, his wife, Ruth, and sister Jeanette Parrott held hands in a witness room opposite the one that held Hubbard's daughter, Barbara McKinney, his attorney and his spiritual advisor. "We love each other," said Parrott, who was one of six Montgomery family members who made the trip to Atmore on Thursday. "We were holding each other because we were there for each other.”

Hubbard showed no emotion, and when asked if he had any last words, he shook his head and said, "No.” Looking sickly and so pale the tattoo on his right arm and blue veins in his head stood out, he looked at McKinney for about 30 seconds before closing his eyes and waiting for the lethal injection process to begin.

Steve Hayes, executive assistant for Alabama's Department of Corrections, said McKinney is claiming Hubbard's body. It is not known where he will be buried. "His daughter stood by his side in these last days," Rose said. "She did her job.”

Hubbard was convicted twice in Montgomery's death. In June 1980, an execution date was set for July 11, 1980, but a ruling by the U.S. Supreme Court declared Alabama's death penalty law unconstitutional. Hubbard was retried and sentenced to death at the retrial.

His first conviction happened within 20 years of a second-degree murder conviction in the 1957 death of David Dockery in Tuscaloosa County. He was released on the state's "good time incentive act" in 1976. Less than a year later, he shot 62-year-old Lillian Montgomery in the shoulder, head and face. She was left to die alone on the kitchen floor of her apartment on U.S. Highway 82, about three miles south of Tuscaloosa.

"I know it was tough on Hubbard's daughter to watch her daddy die," Jimmy Montgomery said. "But he never showed any remorse. I was looking for him to say something to us today. I thought he'd say he was sorry for all the pain he caused our family. You know, the shot to my mother's head was so bad it blew her false teeth down her throat. "She didn't deserve to die like that.”

Hubbard has maintained his innocence throughout his tenure on death row. In a letter he wrote to Lillian Montgomery's granddaughter, Janet Voss, he said that he knew God and that he loved her grandmother very much. "I don't see how you kill somebody you love," Voss said Thursday. "He took something precious from me.”

For years, Hubbard had been on several medications, including pain relievers and antidepressants. He claimed to prison medical personnel and a psychologist that he was constant pain from various stomach and prostrate problems throughout his tenure on death row, and that he couldn't sleep well. Hubbard, raised in a farm family, grew up in Bibb County and in Tuscaloosa. He worked as a carpenter in Tuscaloosa and in Texas before he was convicted of murder.

On Wednesday and Thursday, he had about 15 visitors. He had four visitors from the Kairos Organization, a spiritual group. Hubbard leaves behind two grown children. McKinney, 53, used to visit him regularly. She has six children, four of them adopted. Hubbard also has a son, John, who has two children.

David Elliot, the communications director of the National Coalition Against the Death Penalty, said Hubbard is the oldest person executed in the U.S. since 1941. In that year, Colorado executed James Stephens, who was believed to be 76 years old. Elliot said the next oldest person executed since 1976 was Anthony Antone. Antone was executed in Florida in 1984 at the age of 66.

"It took a while for this to happen -- 26 years, but I never did give up," Jimmy Montgomery said. "I'm glad the state came through for our family. There's no way I wanted to walk the streets of Tuscaloosa and see him walk by me. He can't hurt anyone else now.”

Birmingham News

"Inmate says he's too old for execution," by Samira Jafari. (AP July 31, 2004)

MONTGOMERY - Less than a week from his execution date, 74-year-old James Barney Hubbard is trying to block his death sentence by claiming he's too old and incompetent for capital punishment. The oldest inmate on Alabama's Death Row, Hubbard is scheduled to die by lethal injection Thursday for the 1977 killing of 62-year-old Lillian Montgomery, a Tuscaloosa woman who befriended him after he served a prison sentence for another killing.

Hubbard's attorneys turned to federal courts this week while pleading to Gov. Bob Riley for a commuted sentence based on his age and the need to avoid "the ordeal and spectacle of an execution." Hubbard filed papers in U.S. District Court in Birmingham, contending that because of his "advanced age" and mental incompetence, his execution would be a form of cruel and unusual punishment.

He was recently diagnosed with dementia by a licensed psychologist, who concluded that his condition may cause confusion and interfere with his ability to understand legal procedures, according to court documents. U.S. District Judge L. Scott Coogler on Thursday dismissed Hubbard's new claims, saying his lawyers would have to file a fresh appeal through the 11th U.S. Circuit Court of Appeals before the age argument can be considered. Hubbard will do that, his attorney, Alan D. Rose of Boston, said Friday.

Meanwhile, Hubbard's defense team wrote to Riley, seeking a commutation. "Mr. Hubbard is a sick old man, seriously ill with numerous ailments. ... Rather than put him, his family and the state of Alabama through the ordeal and spectacle of an execution, we humbly and respectfully suggest ... to let Mr. Hubbard, who has already served the equivalent of a life sentence, simply die in prison," attorneys said in the letter.

Prosecutors said that Hubbard's incompetence and age arguments are simply a final attempt to avoid death, especially because he didn't make the claims until after the state asked the Alabama Supreme Court to set his execution date. "He's been in prison and he's been observed, and he's never had a mental health (consultation)," Assistant Attorney General Clay Crenshaw said. "I think it is a last-minute thing. ... And even if he suffers from dementia, that doesn't necessarily make him incompetent."

Hubbard first went to prison in 1957 for a second-degree murder conviction in the death of David Dockery in Tuscaloosa County. He was released in 1976 and killed the Tuscaloosa woman the following year. In 27 years of appeals, Hubbard has neared execution before, but won a delay. He has argued that his most recent claims of incompetence and old age are proper for consideration because they didn't apply when he was younger.

Canadian Coalition to Abolish the Death Penalty (Hubbard Homepage)

James Hubbard - Alabama Death Row

"...23 long years on a charge of murder I did not commit. There was no eyewitnesses, nowhere, NO PROOF that I committed the crime..."

SAMPLE LETTER TO THE GOVERNOR ON BEHALF OF JAMES HUBBARD :

Governor Riley, I am writing to ask you to stop your state's execution of James Hubbard. Mr. Hubbard is scheduled to die next Thursday, 8/5/2003, for the 1977 death of his girlfriend, Lillian Montgomery.

Mr. Hubbard is 74 four years old and debilitated by prostate and colon cancer. He has spent 27 years on death row convicted of a crime to which there was no eyewitness. His alcoholism, borderline mental retardation, and difficult life were never presented in mitigation of his behavior by his clearly inadequate counsel. Further, your state denied his attorneys a 30-day extension of sentencing they requested to review more than 1000 pages of medical records for Mr. Hubbard. Governor Riley, no good purpose can be served by killing James Hubbard; you must halt this execution!

Former Attorney General of the United States Janet Reno, as well as myriads of scholars, can find no evidence that the death penalty deters capital crimes. In fact, the warden of the famous Sing Sing prison believes that the death penalty exacerbates the violence in his facility by setting an example of cold-blooded killing. Recent studies show that the largest increase in capital crimes is in Texas, the state which executes the most people. As for vengeance, that is the Lord's, not the government's.

Please, Governor Riley, use your discretion to stop this killing of James Hubbard. If this execution goes forward, look around this country for the black armbands worn, and the church bells tolled, in protest of this injustice.

Thank you.

Hubbard v. State, 382 So.2d 577 (Ala.Cr.App. 1979) (Direct Appeal)

Defendant was convicted in the Circuit Court, Tuscaloosa County, Claude Harris, Jr., J., of first-degree murder under section of Death Penalty Act authorizing imposition of capital punishment for any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime, and, following an order directing his execution, he appealed. The Court of Criminal Appeals, Bowen, J., held that: (1) defendant was not denied effective assistance of counsel at trial or on appeal of his 1957 conviction for second-degree murder and therefore that conviction was properly admitted into evidence at his trial in 1977; (2) section of Death Penalty Act under which defendant was prosecuted is not unconstitutional; (3) in light of absence of evidence of deception or coercion exercised by police in obtaining keys to store-residence where fatal shooting had taken place and defendant's apparent cooperation and willingness to aid police, act of defendant in giving keys to police when asked whether he knew where the keys were located constituted a voluntary relinquishment of all expectation of privacy so as to justify subsequent warrantless search on basis of consent, and (4) order directing defendant's execution did not satisfy statutory requirements. Judgment affirmed.

BOWEN, Judge. The defendant was indicted in a two count indictment under the Alabama Death Penalty Act for "(a)ny murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime". Code of Alabama 1975, s 13-11-2(a)(13). Count one charged first degree murder with the prior conviction. Count two charged second degree murder with the prior conviction

Omitting its formal parts the indictment is as follows: "I. The Grand Jury of said County charge that before the finding of this Indictment J. B. Hubbard, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought, killed Lillian Montgomery, on to-wit: January 10, 1977, by shooting her with a pistol, and the Grand Jury further charge that at the time said killing was perpetrated, the said J. B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBAND had been convicted of murder in the second degree in the preceding twenty (20) years, on to-wit: October 10, 1957.

"II. The Grand Jury of said County further charge that before the finding of this Indictment J. B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD, whose name is otherwise unknown to the Grand Jury, unlawfully and with malice aforethought killed Lillian Montgomery, on to-wit: January 10, 1977, by shooting her with a pistol, but without premeditation or deliberation, and the Grand Jury further charge that at the time said killing was perpetrated, the said J. B. HUBBARD, alias JAMES BILLY HUBBARD, alias JOHN BARNEY HUBBARD had been convicted of murder in the second degree in the preceding twenty (20) years, on to-wit: October 10, 1957."

A jury found the defendant "guilty of murder in the first degree with aggravated circumstances as charged in count one of the indictment and fix his punishment at death". We find the verdict to be responsive to the indictment and consistent with the principles set forth in Ex Parte Clements, 370 So.2d 723 (Ala.1979). At trial and on appeal the defendant is represented by the Public Defender's Office of Tuscaloosa County.

The defendant was convicted in 1957 for second degree murder and sentenced to fifty years' imprisonment. He was released in October of 1976 "on the good time law". Since his release from prison the defendant had been living with Mrs. Lillian Montgomery at her house and store.

Shortly after 8:00 on the morning of January 10, 1977, an ambulance arrived at the Montgomery Store on Highway 82 in Tuscaloosa, Alabama. The defendant, who had telephoned the police department, was standing in a side door and signaled the ambulance attendants to come into the kitchen. There Mrs. Montgomery lay dead on the floor having been shot three times with her own .38 caliber pistol. At the scene the defendant told the police that "he and Mrs. Montgomery had been in the upstairs bedroom arguing, that she'd went downstairs and he had heard what he thought were two shots" about 7:00 that morning. The pistol and a one-half pint bottle of Cabin Hollow whiskey were found on the defendant after he told a police officer that he had the weapon. Nitrate tests revealed a small amount of powder residue on both of the defendant's hands and on the right hand of the deceased. The presence of the residue indicates that the test subject has recently fired a weapon or has handled a weapon that has recently been fired.

At police headquarters the defendant gave a statement in which he indicated that Mrs. Montgomery committed suicide.

Initially the defendant contends that his prior conviction for murder in the second degree is void because at that trial he was represented by incompetent counsel. To support this allegation the defendant states (1) that his trial counsel was laboring under a conflict of interests and (2) that counsel was incompetent in the handling of his appeal.

Competency of 1957 Trial Counsel

The defendant was convicted for murder in the second degree in 1957. The essence of the claim of incompetent counsel is that trial counsel, Hon. James Marshall, represented both the defendant and his father-in-law, Divid Hubbard, who also had been indicted for the same murder. Although Divid was an eyewitness to the shooting in which the defendant claimed self-defense, he was not called to testify in the defendant's behalf.

In 1962 the defendant filed a petition for writ of error coram nobis in the Circuit Court of Tuscaloosa County. A hearing was held on this matter and the defendant was represented by court appointed counsel. On February 15, 1963, in denying the petition, the trial court entered a lengthy order and finding of facts. After summarizing the testimony of each witness the court stated its findings, portions of which we now set forth.

"Following the lengthy hearing in this case or cause, held on January 28, 1963, the Court makes the following findings of facts, and conclusions of law, based on the allegations of the petitioner, and the testimony and evidence offered at the coram nobis hearing, said findings and conclusions being as follows:

"In the first instance, the petitioner and his family for a very substantial sum of money, to-wit, One Thousand ($1,000.00) Dollars, retained the services of Hon. James Marshall, a member of the Tuscaloosa County Bar Association, who the Court finds to have been a very well experienced in handling all aspects of the practice of law, and particularly criminal defense, including defense of defendants charged with the offense of murder in the first degree, that said attorney was diligent, resourceful and able, both in investigation and preparation of the petitioner's original case and in the trial thereof."

"The Court finds Divit Hubbard was an eye witness and that he testified in this coram nobis hearing to the effect that at the time of the fatal shooting of the victim by the petitioner, the victim was unarmed, that he heard no threat from the victim to the petitioner uttered, and that he saw no sign of any provocation for the shooting. Thus, the Court finds that Mr. Marshall was wise in not using Mr. Divit Hubbard's testimony in the original case, since it would have been very hurtful to the defense of the petitioner.

"The Court finds further that since at the time of the trial of the petitioner in the original case the said, Divit Hubbard, was also charged with the murder of this same victim, he could not have been required to testify in petitioner's trial, and that the said Divit Hubbard could not reasonably have been expected to testify in petitioner's case due to the possibility of self incrimination. "The Court finds further that when the petitioner signed his name to a dismissal of his appeal, he clearly and well understood what he was doing. "The Court further finds that the petitioner through his witnesses and evidence presented in this coram nobis hearing showed nothing which was new or which had been unknown at the time of the original trial, but that, conversely, his own witnesses at this said coram nobis hearing made the case against him even stronger on the date of said hearing than at the original trial. "The Court finds in conclusion that at all times after commission of the said crime the petitioner has received both fair and equitable treatment and has in no instance been deprived of any right accorded and afforded to him either by common law, legislative act, the Constitution of Alabama, the Constitution of the United States of America, or of any other right of which this Court knows or has been informed or had brought to its attention. "This Court further finds that petitioner's court appointed counsel at the coram nobis hearing, rendered a thorough and complete service to the petitioner, and that petitioner was most adequately represented at the coram nobis hearing, and the Court hereby commends the Honorable Walter Flowers for his services, these services being rendered without any remuneration from any source whatsoever."

On December 19, 1968, the defendant filed a second petition for writ of error coram nobis before the Circuit Court of Tuscaloosa County wherein he alleged that "he was not properly represented by counsel and that his attorney stated to the court that he had never tried a murder case and that he did not know much about criminal cases". Counsel was again appointed to represent the appellant. On March 25, 1969, the District Attorney filed a motion to dismiss alleging that this second petition did not disclose any different grounds from those stated in the first petition and that all the matters alleged in the second petition were covered in the first.

On March 25, 1969, a hearing was held on this petition. The appellant was present, was represented by appointed counsel and had witnesses testify in his behalf. After having heard the testimony, Presiding Circuit Judge Aubrey Dominick entered an order and judgment of the court. After reciting the evidence presented Judge Dominick found: "Petitioner did not show and could not show any new ground or grounds which had not been given in support of the Petition for Writ of Error Coram Nobis than given on said trial on January 28, 1963.

"The Court is of the further opinion that no new or different grounds in this Petition have been shown or indicated by Petitioner or his attorney which would in any material respect be new evidence or different from that evidence presented in the hearing before Judge W. C. Warren on January 28, 1963, being Case No. 7891-A in the Circuit Court of Tuscaloosa County, Alabama, and in which case a written Order and Judgment of the Court was made and entered and is in the court file and signed by Judge W. C. Warren on February 15, 1963, since the Court had taken the matter under advisement after the trial on January 28, 1963."

Thereupon the court denied the petition and granted the State's motion to dismiss under Supreme Court Rule 50, Code of Alabama 1940, Volume 3, 1967 Cumulative Supplement This judgment of the Circuit Court was affirmed by this Court without opinion on June 16, 1970, on authority of Supreme Court Rule 50 and Nolan v. State, 43 Ala.App. 711, 199 So.2d 178 (1967).

In the case now under review a pretrial hearing was held on the issue of attorney Marshall's alleged incompetence. The facts there presented fully support, and do not contradict, the findings of Judge Warren. At the conclusion of the hearing the trial judge ruled that the defendant's 1957 conviction was admissible.

"I find from the evidence presented here and based on the findings not only of Judge Warren but also Judge Dominick that defendant was rendered assistant and competent counsel within the meaning of the case I don't have the case, it's a very recent case where they go into this in Alabama, where the Court of Appeals talked about it, and I get it from that that the standard still gone under is the farce or mockery test. And I find that this trial was not rendered into a farce or mockery or assuming that Mr. Hubbard rendered assistance and effective counsel as ruled by Judge Warren who had a full blown hearing with all the facts involved and also by Judge Dominick. So, I will rule that the conviction will be admissible."

During the post-trial hearing on the aggravating and mitigating circumstances, the State elicited testimony from Officer Dempsey Marcum that when the defendant was "booked" following his arrest a watch and a number of checks belonging to the deceased were found in his possession. Officer Marcum stated that at the time the watch was taken from the defendant, the defendant stated that Mrs. Montgomery told him after she shot herself that she wanted him to have the watch.

The defendant contends that the failure of the State to reveal the existence of this statement prior to the time it was elicited was violative of his Fifth and Fourteenth Amendment rights. The relevant portion of the defendant's pretrial discovery motion which was granted by the trial court concerned "written or recorded statements or a summary of any statement made by Defendant or copies of such statements or any oral statement made by Defendant to any person, whether reduced in writing or not, which the State may introduce at trial". Neither the oral statement nor the fact that the watch was found in the possession of the defendant following Mrs. Montgomery's death was introduced into evidence at trial.

From the record it is clear that the prosecutor first learned of the statement made by the defendant to Officer Marcum while Marcum was testifying on the witness stand at the sentencing hearing. Marcum testified that he did not reduce this statement to writing. On cross examination he was asked if he considered the statement unimportant to the case at the time it was made. He replied: "As far as the money and the watch, it was not introduced as evidence, and robbery was not a motive for anything, so I didn't." Inasmuch as the oral statement was not introduced at trial it was outside the scope of the discovery motion which was limited to statements "which the State may introduce at trial". Therefore the State's failure to produce it was not error. United States v. Wells, 525 F.2d 974 (5th Cir. 1976).

We do not consider the defendant's statements exculpatory. Testimony presented at the sentencing hearing revealed that the deceased always wore the watch, that the watch band was broken, and that the watch was appraised between $400 and $500. The testimony also revealed that found on the defendant's person were a number of checks made out to the deceased. The defendant made no statement as to how he came into possession of the checks. Expert testimony at trial revealed that one bullet shattered Mrs. Montgomery's jaw and made enunciation "very, very difficult if not impossible". Another bullet pierced her brain and caused "instant death". Under these circumstances the State's failure to produce the oral statement of the defendant was not error.

Sentencing Hearing

At the hearing on the aggravating and mitigating circumstances defense counsel attempted to introduce the testimony of several of the trial jurors that they would have voted to sentence the defendant to life without parole had that verdict been available to them. The trial judge ruled that such evidence was immaterial and irrelevant.

"It's the ruling of the Court that the feeling of the jury, of course, in that regard is not relevant to the testimony in the proceeding, and that their verdict was only advisory. As I told them, the final decision would have to be made by me after the evidence was produced at this hearing, so it's my ruling that that evidence would be immaterial and irrelevant to this proceeding, and that is my ruling, but I did want to allow you to make an offer showing the proof, so that you could raise it on the record on appeal."

The judgment of the trial court is correct. The rule in this regard is clearly stated in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) "(T)he Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett, 98 S.Ct. at 2965 .

In a footnote to this last quoted sentence the court stated: "Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record or the circumstances of his offense." Lockett, 98 S.Ct. at 2965, fn. 12. The application of the principles enunciated in Lockett, supra, to Alabama's sentencing scheme in death cases is found in Jacobs v. State, 361 So.2d at 652-654 (Ala.1978).

Alabama's Death Penalty Act does not permit the jury to exercise any discretion in fixing punishment. Jacobs v. State, 361 So.2d 640, 641 (Ala.1978). The opinion of a trial juror after having convicted the defendant and fixed his punishment at death has no bearing on the defendant's "character, prior record or the circumstances of his offense". The jury "is not provided with guidelines to aid it in fixing the punishment" and "is not the body which finally determines which murderers must die and which must not". Jacobs, 361 So.2d at 643-644. That function is exclusively vested in the trial judge after a hearing has been held to consider the aggravating and mitigating circumstances. Since the jury does not consider such circumstances in reaching its decision we do not consider a juror's opinion to be relevant or material to the decision which the sentencing judge must reach. The difficult task of sentencing a defendant to death or life imprisonment without parole must be made by the trial judge. What someone else would do should have no effect upon his decision. Therefore the trial judge was without error in refusing to consider the opinions of the trial jurors.

The trial judge indicated that he did not know anything about the facts involved in the defendant's first conviction and sustained the State's objection to "that argument". This was proper. We recognize the principle that "(w)here sentencing discretion is granted, it generally has been agreed that the sentencing judge's 'possession of the fullest information possible concerning the defendant's life and characteristics' is '(h)ighly relevant if not essential (to the), selection of an appropriate sentence . . .'." Williams v. New York, supra, 337 U.S. (241,) at 247, 69 S.Ct. (1079,) at 1083 (, 93 L.Ed. 1337).

However to permit a defendant, as a matter of right, to argue the facts of his prior conviction, except in the most exceptional cases, would result in a retrial of the original and prior conviction. Such would exceed and overextend the purposes of the sentencing hearing and result in a proliferation and ensnarlment of issues immaterial to the original sentencing hearing. Moreover from the record it appears that defense counsel wanted to once again present evidence on "the legal aspects of the attorney involved and things like that". This matter was fully explored at a pretrial hearing. The defendant's allegations of incompetent counsel at his original trial were found to be without merit. Such allegations were used by defense counsel to attack the validity and ultimately the admissibility of the defendant's 1957 conviction.

We do not think that the sentencing hearing should serve the function of a hearing on a petition for writ of error coram nobis. Once having litigated this very issue before the same judge who conducted the sentencing hearing, and a determination having been made that the allegations were without merit, the defendant had no right to relitigate the same issue and argue contentions which had already been determined to be without factual support. In conclusion, the argument that the court failed "to consider the validity of the prior murder conviction in 1957" is without merit since the court had already considered the issue and found the conviction to be valid.

Alabama Code 1975, Section 13-11-4, requires that: "If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentencing hearing, which shall at least include the following: (1) One or more of the aggravating circumstances enumerated in section 13- 11-6, which it finds exists in the case and which it finds sufficient to support the sentence of death; and (2) Any of the mitigating circumstances enumerated in section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances." For the sake of clarity we set forth the entire order of the court sentencing the defendant to death.

"ORDER OF THE COURT"

"In accordance with law, the Court held a hearing on October 28, 1977, to determine whether or not the Defendant would be sentenced to death in accordance with the verdict of the jury or be sentenced to life imprisonment without parole. "The Defendant was present with his attorneys, Honorable Ralph C. Burroughs, the Public Defender for Tuscaloosa County, and Honorable Joel Sogol and Honorable Joel Chandler, Assistant Public Defenders for Tuscaloosa County. The State of Alabama was represented by Honorable Tommy Smith and Honorable Bruce Maddox, both Deputy District Attorneys. "Evidence was offered by the State and Defendant, and both sides were permitted to present argument as to whether the Jury's verdict should be accepted by the Court.

"The Court finds from all of the evidence and the Jury's verdict that the Defendant was guilty and is guilty; and as stated at the presentation of the Jury Verdict, the Court adjudged the Defendant guilty of Murder in the First Degree with aggravating circumstances as charged in Count I of the Indictment. "The Court finds that the capital felony of Murder in the First Degree with aggravating circumstances was committed by this Defendant in that the State proved beyond a reasonable doubt and to a moral certainty that the Defendant committed Murder in the First Degree with the aggravating circumstance that the Defendant had been convicted of Murder in the Second Degree within twenty years of the time that he committed the Murder in the First Degree made the basis of this prosecution. "The Court further finds in aggravation that the Defendant had been convicted of Murder in the Second Degree, a felony involving the use of violence to the person. The Court notes that this conviction for Murder in the Second Degree was the aggravating circumstance alleged in Count I of the Indictment for which Defendant was convicted.

"The Court further finds that this capital felony of Murder in the First Degree with aggravating circumstances was committed for pecuniary gain, in that the evidence showed that Defendant was without money on the night before the crime and that the Defendant when arrested had some Five Hundred ($500.00) Dollars on his person, some of which was in checks made payable to the victim, Lillian Montgomery. The evidence also showed that the victim's son, Jimmy Montgomery, on the day of the crime, checked the cash register till in victim's store and found it to be empty. The evidence further revealed that Defendant had the victim's diamond watch on his person at the time of his arrest; said watch being identified by victim's son as being hers and valued at some Four Hundred ($400.00) Dollars. This watch was evidently forcibly taken from the victim's body as the catch was broken on the watch when it was recovered by the police.

"The Court further finds this capital felony of Murder in the First Degree with aggravating circumstances was especially heinous, atrocious and cruel. The evidence revealed that the victim was shot three different times, with some period of time elapsing between the last two shots. The evidence disclosed a large pool of blood surrounding the victim's head which was the result of a bullet wound to the mouth which shattered one of the victim's dentures. The victim then lay on the floor while her heart pumped the large pool of blood on the floor, then the third and final shot was fired which the testimony showed produced instantaneous death. The act and the means by which the Defendant accomplished it were indeed atrocious, heinous and cruel. "This Court finds all of those aggravating circumstances to be present in this case and finds them sufficient to support the sentence of death imposed by the Jury.

"THEREFORE, after listening to the evidence presented and the arguments of the able attorneys, and after weighing the aggravating circumstances presented by the State and noting the absence of any mitigating circumstances which would justify the Court's refusal to accept the death penalty as fixed by the Jury, it is therefore the order and judgment of the Court that the Jury's verdict of death be accepted in the manner and form provided by law."

The defendant argues that the court erred in finding that the murder was committed for pecuniary gain and cites Ex Parte Cook, 369 So.2d 1251 (Ala.1978), rehearing denied, opinion corrected, February 9, 1979). Cook was convicted of "robbery . . . when the victim is intentionally killed". Section 13-11-2(a)(2). The Supreme Court held that the aggravating circumstance of "a capital felony committed for pecuniary gain" was not to be applied to a robbery. "At Cook's sentencing hearing the trial judge found that two aggravating circumstances were present: (4) a capital felony committed in the course of a robbery, and (6) a capital felony committed for pecuniary gain. In so finding we feel that the learned trial judge misconstrued the latter aggravating circumstance, in effect condemning Cook twice for the same culpable act stealing money. Subsection 6 would, of course, cover a variety of crimes committed with the hope of financial benefit, ranging from 'murder-for-hire' to an heir killing his benefactor to gain his inheritance. But we do not think it appropriate to apply this aggravating circumstance to situations already condemned under subsection 4 which by definition involve an attempt at pecuniary gain. Thus, to avoid repetition, subsection 6 should not be applied to a robbery. The trial court erred in considering it and including it in the findings of fact."

Since the defendant in this case was not charged with robbery, subsection 6 could be an aggravating circumstance. Under the testimony presented at the sentencing hearing the court acted within its discretion in finding that it was an aggravating circumstance.

Though not raised by the defendant, we note that the court's order does not contain a statement of "the findings of fact from the trial" as required by Section 13-11-4. The court's order is also insufficient because it does not specify the mitigating circumstances enumerated in Section 13-11-7 which it found insufficient to outweigh the aggravating circumstances. If no mitigating circumstances exist, the order should so state. Consequently this cause must be remanded with instructions that the court's order be extended to include the findings of fact from the trial and the mitigating circumstances, if any, considered as required by statute.

We have carefully searched the record for any error prejudicial to the defendant. After due consideration to the record and to the alleged errors asserted on appeal it is our opinion that the defendant received a fair trial. Remanded for further proceedings in accordance with this opinion. All Judges concur.

AFTER REMANDMENT - On the return to our order of remand the trial judge has most adequately complied with Alabama Code Section 13-11-4 (1975) as directed. The findings of the trial court now being proper and in compliance with the statutory requirements, the judgment of the circuit court is affirmed.

Hubbard v. State, 405 So.2d 695 (Ala.Cr.App. 1981).

PER CURIAM.
This case is reversed and remanded on authority of the Alabama Supreme Court. REVERSED AND REMANDED.

Hubbard v. State, 500 So.2d 1204 (Ala.Cr.App. 1986).

Defendant was convicted of first-degree murder under the Death Penalty Act and sentenced to death, and defendant appealed. The Court of Criminal Appeals, 382 So.2d 577, affirmed and defendant petitioned for writ of certiorari. The Supreme Court, 382 So.2d 597, affirmed. On application for second rehearing the Supreme Court, 405 So.2d 695, set aside the denial of its original application for rehearing and reversed the judgment of the Court of Criminal Appeals and remanded the cause. The Court of Criminal Appeals, 405 So.2d 695, reversed and remanded to the trial court. On remand, the defendant was again convicted of murder in the first degree with aggravating circumstances and sentenced to death before the Circuit Court, Tuscaloosa County, Claude Harris, Jr., J., and defendant appealed. The Court of Criminal Appeals, Patterson, J., held that: (1) evidence of defendant's prior murder conviction was properly admitted, and (2) pre-Miranda statements given to police were not made while defendant was in custody or under any restraint and such statements were thus admissible. Affirmed.

PATTERSON, Judge.
J.B. Hubbard, alias Billy Hubbard, alias Barney Hubbard, appellant, was first indicted February 18, 1977, in a two-count indictment under the Alabama Death Penalty Act relating to "[a]ny murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime." Code of Alabama 1975, § 13-11-2(a)(13). Count One charged first degree murder with the prior conviction, and Count Two charged second degree murder with the prior conviction.

Appellant was duly arraigned and he pleaded not guilty. A jury found him "guilty of murder in the first degree with aggravating circumstances as charged in Count One of the indictment and fix his punishment at death." After a separate sentencing hearing, the trial court accepted the jury's recommendation and sentenced appellant to death. On appeal this court remanded the case to the trial court with instructions that the lower court's order be extended to include findings of fact from the trial and the mitigating circumstances, if any, considered as required by statute. After a proper return to remand was filed, we affirmed the judgment of conviction. Hubbard v. State, 382 So.2d 577 (Ala.Cr.App.1979). Affirmance by the supreme court of Alabama followed. Hubbard v. State, 382 So.2d 597 (Ala.1980). Subsequently, the supreme court reversed the judgment of this court and remanded the cause to this court on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Pursuant to the order of the supreme court, we reversed and remanded the case to the trial court on October 6, 1981. Hubbard v. State, 405 So.2d 695 (Ala.Cr.App.1981).

The instant appeal is from appellant's second trial on the same two-count indictment, wherein he was convicted again for the same capital offense. § 13-11-2(a)(13). [FN1] The second trial was conducted in accordance with the bifurcated procedures outlined in Beck v. State, supra. In the first trial and on appeal, appellant was represented by the public defender of Tuscaloosa County, and on his second trial, he was represented by two appointed attorneys who are experienced and able members of the bar. The same two appointed attorneys represent him on this appeal. As in the first trial, the jury found appellant guilty of "murder in the first degree with aggravating circumstances as charged in Count One of the indictment," and, after a separate sentencing hearing, fixed his punishment at death. The trial court then held a second sentencing hearing on aggravating and mitigating circumstances, and found the existence of three aggravating circumstances and no mitigating circumstances. The trial court weighed the aggravating circumstances, while noting the absence of mitigating circumstances, and on May 14, 1982, sentenced appellant to death, thereby accepting the death penalty as recommended by the jury. It is from this second conviction and sentence that appellant now prosecutes this appeal.

FN1. The 1975 capital punishment statute, as contained in §§ 13-11-1 through 13-11-9, was, upon adoption of the new criminal code, effective January 1, 1980, recodified in identical language as §§ 13A-5-30 through 13A-5-38. These sections of the new criminal code were repealed effective July 1, 1981, by the 1981 capital offense statute, which applies only to conduct occurring on or after July 1, 1981; the repeal of §§ 13A-5-30 through -38 did not affect the applicability of those sections to conduct that occurred before July 1, 1981.

As alleged in his capital indictment, appellant was previously convicted of murder in the second degree in Tuscaloosa County on October 10, 1957, for the killing of Carl Dockery, and was sentenced to fifty years in the penitentiary. Receiving credit for "good time," he completed serving his sentence, and was released from prison in October 1976. Shortly after his release, he began living with the victim in the instant case, Lillian Montgomery, at her house and adjoining store near Tuscaloosa. On January 10, 1977, at approximately 8:15 a.m., an ambulance, manned by attendants David Freeman and Ricky Lee, was dispatched to the combination residence-store of the victim, Lillian Montgomery, as a result of a reported "suicide." Appellant had called the telephone operator for assistance; the operator had called the police at appellant's request; and the police called for the ambulance. Upon the arrival of the ambulance at the scene, some ten minutes later, the attendants saw appellant in the open doorway motioning for them to come inside. The attendants entered the residence and found the body of Lillian Montgomery lying in a pool of blood on the kitchen floor. Appellant stated to David Freeman, when asked if he had moved anything, that he had "carried the gun upstairs," whereupon the attendants and appellant went outside to the ambulance, locking the door behind them.

About 8:53 a.m., Tuscaloosa Police Officers Jack Manley and Charles Stephens arrived at the scene. Officer Manley was informed that the residence was locked, at which time he was given the door key by appellant. Officers Manley and Stephens entered the kitchen and saw that Lillian Montgomery was dead and had apparently been shot more than once. Upon seeing the condition of the body, the officers went back to their patrol car and radioed for a member of the homicide unit and the coroner to come to the scene.

While waiting on the homicide detective and the coroner to arrive, Officer Manley asked appellant what happened. Appellant told Manley that he and Ms. Montgomery had been arguing the night before and that the argument had continued that morning. He stated that about 7:00 a.m., Ms. Montgomery went downstairs and that he heard two shots. Manley asked appellant the whereabouts of the gun, and appellant stated that the gun was on his person. Manley then searched appellant's person and found a .38 caliber pistol, a partial box of .38 caliber ammunition, and a half-pint bottle containing whiskey. At this point, Manley gave appellant Miranda warnings by reading from a card and placed him in the patrol car. Appellant had obviously been drinking, but the witnesses who observed him testified that he was not intoxicated.

Sergeant Dempsey Marcum, the homicide detective, arrived at the scene at approximately 9:15 a.m. While sitting in the patrol car, appellant showed Officer Stephens his billfold, which contained an undetermined amount of money, and stated, "I'm not a bum." Manley gave Marcum the items he had seized from appellant. Marcum checked the gun and found it to be fully loaded. Marcum entered the residence, with coroner Earl Mitchell and state toxicologist Jim Britton, who in the meantime had arrived at the scene. Upon entry, Marcum observed the body and noted that the kitchen trash can had been overturned and garbage scattered. The victim was clutching a partial set of dentures in her right hand, and a portion of a denture which appeared to be broken lay on the floor near the body. The victim was lying on the kitchen floor in a pool of blood. One mutilated, spent bullet, was found on the kitchen stove, and two spent .38 caliber shell casings were found in a wastepaper basket in the upstairs bedroom.

An autopsy performed later on the same day disclosed that the victim had been shot three times. Upon learning this, Marcum returned to the victim's residence and recovered a third .38 caliber spent shell casing from the wastepaper basket in the upstairs bedroom. The autopsy revealed that one bullet entered the left shoulder of the victim, passing from the victim's left to her right at an angle of approximately fifty degrees from the front plane and approximately twenty degrees downward, exiting behind the left shoulder. Another bullet entered the victim's mouth, passing to her right at an angle of thirty-five degrees from the front plane and upward at an angle of two degrees, exiting beneath her right ear. This shot furrowed or cut the victim's tongue, and shattered her jaw, as well as one of her dentures, leaving five or six pieces of the denture lodged in her throat. It damaged large blood vessels and caused severe bleeding of from two to three pints of blood. The pathologist testified that in his opinion, within a reasonable medical certainty, the victim would have been unable to articulate or speak after this wound to the mouth. He stated, as follows: "I don't think anyone would be able to articulate words with the injury that I have described.... She could not be able to talk so that she could be understood." A third bullet entered just above the left eyebrow, passing through the brain from the victim's left to her right at an angle of approximately thirty degrees from the front plane and parallel with the horizontal plane, lodging in the lower right rear of the skull. This wound was the cause of death. Death resulted practically instantaneously from the shot that penetrated her brain, and her heart would have stopped beating in a matter of approximately two seconds. The bullet was recovered from the skull. The pathologist further testified, "Within a reasonable medical probability, she was shot in the mouth before she was shot in the brain." This opinion was based upon the observation that most of the blood which flowed from the victim came as a result of the shot in the mouth and that, while she was bleeding, her heart had to be pumping.

It was determined by a firearms expert that the bullet recovered from the victim's skull and the three spent shell casings found in the wastepaper basket in the upstairs bedroom were fired by the pistol taken from the person of appellant. The spent bullet found in the kitchen was so mutilated that comparisons were impossible. An examination of the victim's face showed powder burns or "stifling" on her face. Pattern tests were conducted by the State toxicologist and it was his opinion that the three shots were fired from a distance of no closer than fifteen inches and possibly as far away as thirty- nine inches. The victim was right-handed. Appellant and the victim were apparently alone in the house at the time of the shooting. An alcohol blood test performed at the time of the autopsy disclosed that the deceased had an alcohol blood content of .11 percent. Several hours after the shooting, appellant made a statement to Marcum at police headquarters concerning the incident. Prior to giving this statement, appellant was again advised of his Miranda rights. After being so advised, he signed a waiver of rights form. The waiver contained a statement that appellant understood his rights, understood what he was doing, did not want a lawyer, and desired to make a statement and answer questions, and acknowledged that no promises had been made to him and no threats, pressure, or coercion of any kind had been used against him. Marcum wrote the statement as it was made by appellant, and appellant signed it after reading it and having it read to him by Marcum. The statement was read into the record by Marcum at trial, and is as follows:

"All right, this statement was taken at the Tuscaloosa County Homicide Office on 1614 26th Avenue at 11:35 a.m. on January 10, 1977. Investigator Shirley Fields was present there in the office. 'Approximately about two or three a.m. this morning I went downstairs to the store and got me a half pint of Kentucky corn whiskey and drank most of the half pint. After I went back upstairs, Lillian said she had a headache and that she wanted something to drink to see if she could stop her headache. I asked her what she wanted to drink and she said get her a pint of that J.W. Dant and I went downstairs to the store and got her some ice and a Coke and brought it back up to her. She mixed it and she mixed it in a large glass and drank it. I asked her if she was feeling any better. I was laying on the other side of the bed from her. She said, "I'm going to fix me another one." I'd already drank enough and was settled enough that I was fixing to doze back off to sleep. Before she had the drink, she said she wanted to go where her mother was. I said, "What are you talking about, Sugar?", and she said she had so many debts to pay that she just wanted to get out of her misery. I was just dozing when she got up. I didn't see her with the pistol. But she keeps it under her pillow. She went downstairs and I heard two shots. I went downstairs and saw her laying in the floor. I asked her, "What in the world have you done?", and she said, "I just wanted to leave and get out of the way." The last thing she said was to tell me for me and Jimmy and Johnny to take care of what she had and said, "You tell Jimmy and Johnny I want you to have my car." She then just passed out and then I went back upstairs and looked in a book and got Mildred's phone number and then I called Mildred on the upstairs phone. Mildred told me to call the ambulance and the police. Then I called my mother, Mrs. Benny Hubbard, at the rest home in Northport and I told her what Lillian had done. Mother said, "Well, call the ambulance or call somebody." I hung up the phone, then I called Nettie at the bar at the Old Southern Dairy where that lounge is there. I told Nettie what Lillie had done and asked her what I had ought to do. She said, "Call a doctor or ambulance," that she couldn't come down there. Then I called the operator and she told me to call the police headquarters and she dialed them for me. I told her it was an emergency, the police department answered and said they would send the ambulance right on out there. When I saw Lillian, the pistol was under her left hand. I took the pistol out from under her left hand and carried it back upstairs and took two empty shells out of it and put two more bullets in it. I stuck the pistol in my pocket and was fixing to go hide it. I put the box of shells in my pocket and came downstairs. I believe the police got the pistol off me. I put the two empty shells in a trash can upstairs. The police brought me to the homicide office. This is my true and correct statement.' Signed James B. Hubbard."

Shortly after appellant made the above statement, he was "booked" into the county jail, and when his personal possessions were inventoried, it was discovered that he had the victim's gold wrist watch on his person. The wristband of the watch was broken. The watch contained diamonds and was valued at approximately $400. The victim's son testified that the watch had been a Christmas gift from him to his mother; that she prized the watch highly and always wore it; and that when she broke it, which she occasionally did, she would immediately have it repaired. Appellant also had in his possession checks totaling $230. Two of these checks were in amounts of $5 each, were payable to "cash," and contained no endorsement. One check in the amount of $45 was payable to the victim and was not endorsed. One check in the amount of $175 was payable to the victim and was endorsed by general endorsement. This check was from Mrs. Stephanie Gravey and was for a rent payment on a house jointly owned by the victim and her son, Jimmy Montgomery. It was the practice of the victim to collect these monthly rent payment, make the monthly mortgage payments due on the house, pay the expenses of upkeep, and at the end of the year divide the profit with her son. Appellant also had $260 in currency and $12.22 in change on his person. The change contained twenty-two pennies. Jimmy Montgomery testified that he was familiar with his mother's business and that she usually kept cash and change in the store cash register. Shortly after the shooting, he checked the cash register and it was empty. He further testified that during the time appellant had been living with his mother, she had spent approximately $10,000 on appellant, which included feeding and clothing him. The photographs of the victim's body, taken shortly after the shooting and before the body was disturbed, show two rings on one of her fingers. Her son testified that it was impossible for his mother to remove the rings from her finger. When the watch, checks and money were taken from appellant at the jail, he stated that the victim told him after she was shot that she wanted him to have her watch, money, and "valuables."

Upon conclusion of the State's case in chief, appellant moved to exclude the State's evidence pertaining to the prior conviction of October 10, 1957, for murder in the second degree. The motion was overruled. Appellant did not testify in his own behalf. It is apparent from the arguments of defense counsel, cross-examination of the State's witnesses, and the testimony of the defense witnesses, that appellant's defense was based upon the alibi that he was upstairs when Ms. Montgomery was shot in the downstairs kitchen. The thrust of his defense was that Ms. Montgomery committed suicide. Appellant called three witnesses in his behalf: Eugene Shultz, Robert A. Gooden, and Mildred Burgin. Gooden testified that Ms. Montgomery called him between 4:00 a.m. and 5:00 a.m. on the morning of the shooting and asked him to help start her automobile. He tried but failed. He saw both Ms. Montgomery and appellant and he testified that they did not appear to be having any argument. Shultz, who lived nearby, testified that he was asked by appellant around 6:00 a.m. to help start the automobile. He tried and failed. He stated that it did not appear that they were having an argument, and that when they went back into the house, they were "arm and arm." Burgin testified that she was a friend of the victim and had visited her about a week prior to her death. She stated that she carried the victim to the hospital on that occasion, and observed the victim give appellant $1,100. She also testified that the victim complained about bills the appellant was "running up." She stated that, on the morning of the shooting, appellant called her on the telephone and told her that Ms. Montgomery had shot herself and stated, "I think she's down there bleeding to death." Burgin told appellant to call an ambulance.

* * * *

Hubbard v. State, 584 So.2d 895 (Ala.Cr.App. 1991).

Petitioner was convicted in the Circuit Court, Tuscaloosa County, Thomas S. Wilson, J., of first-degree murder and was sentenced to death. The Court of Criminal Appeals, 382 So.2d 577, affirmed. Certiorari was granted. The Supreme Court, 382 So.2d 597, affirmed. On application for second rehearing, the Supreme Court, 405 So.2d 695, set aside denial of original application for rehearing, reversed judgment of Court of Criminal Appeals, and remanded. The Court of Criminal Appeals, 405 So.2d 695, reversed and remanded. Petitioner was again convicted and sentenced to death, and he appealed. The Court of Criminal Appeals, 500 So.2d 1204, affirmed. Certiorari was granted. The Supreme Court, 500 So.2d 1231, affirmed. Petitioner sought postconviction relief. The Circuit Court, Thomas S. Wilson, J., denied petition. Petitioner appealed. The Court of Criminal Appeals, Tyson, J., held that: (1) petitioner was not entitled to state funds to hire expert to testify at hearing on petition for postconviction relief; (2) petitioner was not entitled to expert to testify as to ineffective assistance of counsel; and (3) petitioner's trial and appellate attorneys did not render ineffective assistance. Affirmed.