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GEORGE HORACE HUBBARD AND BILLY DEAN HUBBARD v. STATE OF MISSISSIPPI

SEPTEMBER 14, 1983

GEORGE HORACE HUBBARD AND BILLY DEAN HUBBARD
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, HAWKINS AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

George Horace Hubbard was charged with murder of Walter Eugene Hall, convicted of manslaughter, and sentenced to twenty years in the Mississippi Department of Corrections. Billy Dean Hubbard and George Horace Hubbard were charged and convicted of aggravated assault on William Kyle Livingston and each sentenced to twenty years. From these convictions in the Circuit Court of Tishomingo County, the defendants appeal assigning the following errors:

(I)

 Limitation of the defendants' right of cross and re-cross examination of several state witnesses.

 (II)

 The Court's admonishment against defense counsel before the jury panel.

 (III)

 The admission into evidence of guns not used in the commission of the crimes charged.

 (IV)

 The introduction of gruesome photographs of the deceased.

 (V)

 The allowance of testimony of a state witness, whose name nor report was provided to defense attorneys under the pretrial discovery.

 (VI)

 The denial of a motion for mistrial due to a prejudicial statement made by a state's witness.

 (VII)

 The submission of an instruction on manslaughter.

 (VIII)

 The granting of an improper instruction regarding the rights of bail bondsmen and the failure to instruct as to the obligation of bail bondsmen to adhere to state laws.

 (IX)

 The denial of motion for mistrial or the failure to instruct the jury to disregard state attorney's reference to the non-existent testimony.

 (X)

 The denial of defendant Billy Dean Hubbard's motion for acquittal of aggravated assault for lack of evidence.

 We affirm the convictions on all charges.

 On August 11, 1979, George Horace Hubbard was arrested for parading without a permit during a "klan" march in Montgomery, Alabama. Bail bond was posted by William Kyle "Sonny" Livingston for his release. For Hubbard's failure to appear in court, a bond forfeiture was taken in the amount of $2,000.00.

 Livingston, with two employees, A. C. Chapman and Walter Eugene "Buddy" Hall, came to Mississippi on January 19, 1980, to return Horace Hubbard to court in Alabama. They asked one Mississippi police officer as to Hubbard's whereabouts and were advised that Hubbard had not been seen for several months.

 On that evening George Horace Hubbard was advised by his brother, Billy, that some people were looking for him with warrants. A telephone call was made by Horace Hubbard to the sheriff to inquire as to any outstanding warrant, and the sheriff advised him that he had none.

 Livingston, Chapman, and Hall located Hubbard's home on the next morning. Livingston, with a handgun and a 12 gauge double barrelled shotgun, and Hall, with a 38 special stub-nosed Charter Arms light-weight pistol, stayed in the woods near the home to observe the activity there while Chapman went to get the sheriff.

 Before the sheriff arrived, Horace and Billy Hubbard left the trailer home and discovered the two armed men nearby. The details of this encounter were disputed. Livingston testified that he told Hubbard he wanted to talk to him; that he wanted no trouble. Horace Hubbard drew his rifles, and Livingston leveled his shotgun. Hubbard testified that he recognized Livingston, and backed his car away, and "thought" he heard a gunshot from one of the Alabama men.

 Upon return to his home, Horace Hubbard telephoned the sheriff's office. The sheriff's dispatcher quoted Hubbard's statement to be that he was going to kill two men if the sheriff didn't get there in five minutes.

 After about a thirty minute wait, Horace Hubbard and his brother Billy left the trailer to return to the location of the Alabama men. They took with them a Western Field brand, Model 740, lever action 30-30 rifle with scope and a Remington brand, model 700, 7 MM Magnum bolt-action rifle with a telescopic sight.

 The evidence conflicted as to the firing of the initial shot, but numerous shots were fired. After the shooting subsided, Ronnie Hubbard, son of Billy Dean Hubbard, drove up with two additional guns.

 The sheriff, his deputies, and Chapman arrived to find both Livingston and Hall wounded. Hall subsequently died as a result of the shoulder wound made by a projectile fired from Horace Hubbard's Remington rifle.

 After indictment and trial, the defendants challenge several court rulings which allegedly precluded their receiving a fair trial.

 IA.

 The first question to be decided is whether the court's limitation of the witness examination to direct, cross and redirect examination, denies a defendant his constitutional right to confront witnesses against him. The trial court permitted no recross examination of any witness.

 The Mississippi Constitution grants and guarantees to an accused in a criminal prosecution the right to confront witnesses against him. Article 3, Section 26 of the Mississippi Constitution, 1890. The constitutional right of confrontation of witnesses encompasses the right to cross-examine them. Spears v. State, 241 So. 2d 148 (Miss. 1970); Butler v. State, 245 So. 2d 605 (Miss. 1971); Hamburg v. State, 248 So. 2d 430 (Miss. 1971).

 However, the assertion here by the defense is that restriction on recross examination is a constitutional violation. Based upon our constitution and case law we disagree. The rule to be applied to recross examination is that:

 It is proper to exclude questions as to matters which were not opened up or brought out on redirect examination, or as to matters already fully covered, or discussed at length on cross-examination, where there is no claim of oversight and no reason stated why the matter was not inquired into on the cross-examination profert. 98 C.J.S. Witnesses 429.

 Although the determination of this question is based on Mississippi constitutional and case law, we compare our decisions with other jurisdictions. See Kinser v. Cooper, 413 F.2d 730 (6th. Cir. 1969) (no federal constitutional denial in limitation on right to recross examine prosecution witnesss). It has also been held that recross examination is not allowable as a matter of right, but a matter of trial court discretion. Nelson v. State, 513 S.W.2d 496 (Ark. 1974).

 The defense relies upon Valentine v. State, 396 So. 2d 15 (Miss. 1981), in which this Court reversed and remanded for a new trial where the trial court restricted cross-examination. This case is factually distinguishable as it applied to cross-examination, not recross.

 In analyzing the record of this case, however, the Court is of the opinion that full cross-examination was permitted by the trial judge. The court's ruling applied to recross examination, and the court applied the restriction equally to both defense and prosecution. Recross examination may be limited by the trial judge in his sound discretion. No abuse of discretion is present in this denial of recross examination. We find no merit in this assignment.

 1B.

 Appellants contend that prejudicial error was committed when they were not allowed to cross-examine Sonny Livingston concerning statements Livingston made to Al Jernigan or Sheriff Bates subsequent to the shooting. The applicable rule of law for this assignment has been previously stated. We turn to the facts.

 Defense counsel attempted to impeach witness Livingston with a prior inconsistent statement. However, the record reveals that Livingston was asked the question and denied making the statement sought to be elicited. There was no objection made by the prosecutor. Cross-examination was not denied or impeded. Fisher v. State, 150 Miss. 206, 116 So. 746 (1928). However, defense counsel did not recall the witnesses to ...


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