— The Cullman man charged with murder in the fatal shooting of an Athens man could be charged with capital murder in the case.

Limestone County district Attorney Brian Jones said that although Joel Moyers, 52, is charged with murder and firing into an occupied vehicle, both felony charges, the murder charge could be upgraded to capital murder. Capital murder occurs when a murder occurs during the commission of another felony, in this case firing into a vehicle.

Some have questioned why Moyers was not initially charged with capital murder, which could have allowed a judge to deny him bail. Moyers was freed after posting a $260,000 bail.

“We could charge him,” Jones said Thursday. “The case is still being processed and is still under investigation. Jones said he could either obtain a warrant for Moyers charging him with capital murder at some point, or the grand jury could decide to charge him with capital murder.

“The case is still being investigated and it’s a little bit early for that determination,” he said. “We want to make sure we are 100 percent finished on that.”

Moyers is accused of firing one round from his AK-47 assault rifle into the back of a truck, killing 26-year-old Brandon Hydrick in the early morning hours of Sept. 29. Hydrick was a passenger in the truck driven by his brother, Ryan. The Hydricks were innocent victims who were lost at the time and whom Moyers believed seemed suspicious. When he tried to stop their vehicle, Ryan, who could see Moyers was armed, continued on. Moyers fired what he said was “a warning shot” that hit the truck but what authorities said was an intentional shot into the back of the truck.

It in not unusual for a defendant charged with murder to later have his charge upgraded.

Lamar Anderson was initially charged with murder in the blunt-force trauma death of Wendy Defoe Bond in 2011. That charge was later upgraded to capital murder because Anderson was also accused of breaking into the old Trinity School where the murder occurred. The burglary is a felony. Anderson remains in the Limestone County Jail with bail set at $270,000.

Purpose of bail

As for bond in the Moyers case, Jones said he does not believe it is too low.

“It’s a pretty high bond,” he said. “Bond is designed to ensure a person will return for their day in court. Under our Constitution, a defendant is entitled to bond with the exception of capital murder.”

(In the case of capita murder, a judge can either set an amount of bail or deny bail.)

The sole purpose of bail is to ensure a defendant’s appearance in court, not to punish. Our justice system presumes a person is innocent until proven guilty. The Constitution prohibits judges from setting bail so unreachable that it punishes the defendant before trial.

Assessing danger

On Oct. 1, Jones had asked the District Court to be heard on the setting of the defendants bond. In that motion, he said Moyers would “pose a real and present danger to others or to the public” if he was “at large.” Jones made this request, according to a court document, “based on the defendants background, reputation, character, use of a firearm to commit an act of violence, his use — on previous occasions — of a firearm to threaten and intimidate neighbors.”

However, he and Moyers’s defense attorney, Dan Totten, then reached an agreement requiring Moyers to post $250,000 bail on the murder charge and $10,000 on the companion charge, for a total of $260,000. Jones presented this agreement to District Judge Jerry Batts and asked that it be granted. Typically, when an agreement is reached between the prosecution and the defense, the court accepts the agreement.

Jones said he believes Moyers’s mother posted her property to ensure the release of her son until trial. Batts did place several additional restrictions on Moyers, including that he return to his mother’s home in Cullman to live, that he surrender all firearms and that he refrain from obtaining any more firearms.

Jones said he is closely monitoring the situation.

“Mr. Moyers has 100 percent of my attention — we are watching him very, very closely,” he said.

Why bail varies

Both federal and state laws guarantee a person the right to a reasonable bail, though the laws are flexible if the accused is deemed a flight risk or a danger to others.

From a federal level, the Eighth Amendment to the United States Constitution reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

From a state level, the Alabama Constitution of 1901 reads:

“That all persons shall, before conviction, be bailable by sufficient

sureties, except for capital offenses, when the proof is evident or the

presumption great; and that excessive bail shall not in any case be

required.”

So, how do judges determine what, if any, bail to set?

The Alabama Rules of Judicial Procedure — a guide for municipal, district and circuit judges in the state — sets out the conditions for bail. It states that any defendant charged with a bailable offense “as a matter of right” may be released before or during trial on his or her promise to appear or on an appearance bond, “unless the court or magistrate

determines such a release will not reasonably assure the defendant’s

appearance as required or that the defendant’s being at large will pose a real and present danger to others or to the public at large.”

Judges use several factors to determine bail, including past criminal record, character, family ties, threats made, weapon used and other factors.

Under Rule 7 of the Rules of Judicial Procedure, the recommended bail for a person charged with murder ranges from $15,000 to $75,000. The recommended bail for a person charged with capital murder — murder in the commission of another felony crime — ranges from $50,000 to no bail. The rules also state that courts should “exercise discretion in setting bail above or below the scheduled amounts.”

Bail varies

Because bail varies from case to case depending on these factors, it sometimes appears there is no continuity in the amounts set.

Bail in recent murder cases illustrates this point. Bail was set at $270,000 for Anderson in the death of Bond. Bail was set at $150,000 for Pam Terry, who was charged and later pleaded guilty to murdering her estranged husband, Steven Charles Slaughter in 2009. Bail was set at $500,000 for Lisa Pate, who was sentenced to life in prison this month for murdering her boyfriend, James Miller in 2009. Bail was initially set at $1 million for Thomas Smoak, an Athens man accused of making a terrorist threat by allegedly bringing a loaded shotgun to Athens High School in 2010. Though not charged with capital murder, murder or even attempted murder, his bail was set higher than in all of these murder cases because he was deemed a risk to the community at large. His threat seemed more expansive.

Although Moyers told sheriff’s officials he had “fired a warning shot into the air,” sheriff’s investigators believe he intentionally fired at the Hydrick truck that was fleeing from him.

However, Moyers did not flee the scene of the shooting and surrendered to authorities without incident, whereas Smoak had to be pursued and forced to surrender to Athens Police.

These sorts of factors enter into the determination of setting bail.