Arthur v. State

Decision Date25 May 1990
Docket Number6 Div. 477
Citation575 So.2d 1165
PartiesThomas Douglas ARTHUR v. STATE.
CourtAlabama Court of Criminal Appeals

William R. Hovater, Tuscumbia, and H. Alan Gargis, Muscle Shoals, for appellant.

Don Siegelman, Atty. Gen., and William D. Little and Andy S. Poole, Asst. Attys. Gen., for appellee.


The appellant, Thomas Douglas Arthur, was indicted by a Colbert County grand jury for the capital offense of "[m]urder by a defendant who has been convicted of any other murder in the 20 years preceding the crime," § 13A-5-40(a)(13), Code of Alabama 1975. His first trial, occurring in February 1982, resulted in a guilty verdict and a sentence of death, as recommended by the jury. This conviction and sentence were affirmed by this court. Arthur v. State, 472 So.2d 650 (Ala.Cr.App.1984). However, our supreme court reversed, ruling that details of Arthur's prior second-degree murder conviction were not admissible under the identity exception to the general exclusionary rule that evidence of the defendant's wrongdoing, which itself is a crime, is not admissible if its only probative value is to show his bad character, inclination, or propensity to commit the type of crime for which he is being tried. Ex parte Arthur, 472 So.2d 665 (Ala.1985).

After a change of venue to the Jefferson County Circuit Court, Arthur's second trial, which proceeded under the 1982 indictment, 1 began on May 5, 1987, and, on May 13, the jury returned a verdict of guilty as charged. After a sentencing hearing, the jury, by a vote of 10 to 2, recommended that Arthur be sentenced to death. On May 29, the trial court held a sentencing hearing wherein it set Arthur's punishment at death.

Arthur's motion for new trial was denied by written order on April 12, 1988, after a hearing on August 17, 1987. After receiving the last requested supplemental record on April 6, 1989, this court heard oral argument in this cause on November 7, 1989, and took this cause under submission on that date.

The prosecution's main witness was Judy Wicker, 2 who has been convicted and sentenced to life imprisonment for the murder of the victim, her husband. 3 She admitted that she had not implicated Arthur or herself during her trial and that she had not told the truth. She also admitted that the prosecution told her that, if she told the truth in this case, a good word would be put in for her with the parole board.

In regard to her relationship with Arthur, Wicker testified that she had known Arthur from years past; that, when he was assigned to work release, he called her first; and that she first saw him in December. She also acknowledged that, after the murder, she continued to date Arthur and that he called her many times.

Wicker further revealed that, since March 1981, she and her sister, Theresa Rowland, had had discussions about having the victim killed. She explained that she and the victim had had physically violent arguments and that the victim and Rowland did not get along because they argued over the victim having burned down Rowland's house for her and because the victim had threatened to send her to jail for the arson. She also testified that, in April 1981, she and Rowland had an agreement with Theron McKinney, Rowland's boyfriend, that he would harm the victim; that the three of them had planned to kill the victim and were having him followed; that the victim had been in fear of a black man who had been following him; that McKinney put up $5000, in March, to have the Wicker gave the following rendition of facts surrounding the murder: Sometime prior to the shooting, Rowland called Wicker's daughter from another marriage and told her that "there was going to be an accident, but [Wicker] wouldn't be hurt too bad." On the morning of the murder, after Wicker took her other two children (from her marriage with the victim) to school, she met Rowland and Arthur near the airport. She observed Arthur "doing something to himself" in Rowland's car. He was disguised as a black person; he was wearing an Afro wig and black gloves, and his face was black. Arthur, who had been drinking, got into Wicker's car. He had a gun about 12 inches long, which was in his hand and covered with a towel, and, also, a garbage bag. While he directed her to her house, she begged him not to "do what he was going to do." He responded that the "son-of-a-bitch deserved to die." After they arrived at the Wicker house and entered the den, Arthur began knocking over things. He went into the bedroom where the victim was sleeping and pulled everything from the closet and dresser drawers. The victim did not wake up during this commotion. Then, after Arthur shot the victim, he returned to the den where Wicker was, and he hit her. She remembered nothing else until the police arrived. However, right after the incident, she called Rowland. She received extensive injury to her lip, she was bruised over her body, and several teeth were knocked out.

victim killed; and that, at one point, Rowland planned to kill him herself.

In regard to the victim's failure to awaken after Arthur entered the house, Wicker testified that she thought Rowland had put some kind of drug in the liquor that Rowland had brought to the victim and that he had consumed on the night before his death. In fact, she testified that Rowland had told her that she put a "knock-out" drug in his liquor. Wicker also testified that normally the victim would have been awakened by such commotion because he was not a very sound sleeper.

Wicker also testified that she received $90,000 in insurance proceeds; that, before the murder, Rowland and McKinney paid Arthur some money, so after the murder, she "repaid" Rowland $6,000 and gave McKinney the victim's Trans Am automobile; that, after the murder, Arthur asked her numerous times for money; that she gave him $10,000 in cash; and that, after she paid him, he threatened her about the money. Wicker further revealed that the money found on Arthur when he was transferred to the county jail on March 16 was not part of the payment from her because he gave the payment money to Norman Roby, an attorney. Finally, Wicker testified that Arthur obtained the gun from his son and that he told her what to tell the police.

The prosecution's other witnesses presented testimony to the following effect. While on work release, Arthur worked at Joel Reagan Mobile Homes in Decatur for minimum wage. His boss saw Wicker visit Arthur twice at work. He also sold Arthur a car for $2,000.

While on work release, Arthur met Deborah Tines, the manager of Cher's Lounge, a "go-go" club. Several weeks after they met in December, Arthur questioned Tines about whether or not she carried a gun. During this conversation, he asked if she knew that a .22 is an assassin's gun and if "hot" guns ever came through the club.

Sometime in December or January, Arthur asked Patsy Yarbrough, a waitress at Cher's Lounge, about obtaining some "jars," a "knock-out drug."

The Decatur Work Release Center's records show that, on Sunday, January 31, Arthur signed out to work at 9:30 a.m. and signed in at 7:00 p.m. On the afternoon of January 31, Arthur asked Yarbrough to get him some .22 caliber Mini-Mag long rifle bullets. He gave her $10, and he assured her that, even though someone was going to be killed, she should not worry about violating her probation because, since the killing was going to be in Tennessee, nothing could be traced back to her. About 5:30 p.m., Yarbrough sent for Terry Lewis and gave him a slip of paper with the Sometime later, Arthur asked Gene Moon, a fellow inmate at the work release center, if Moon thought Yarbrough would say anything about buying some bullets for him. He also told Moon that he had a gun.

requested type of ammunition written on it. Lewis then left, purchased the requested ammunition at a Woolco store close to closing time, returned to Cher's, and gave the bullets to Yarbrough. A telephone record shows that a phone call was made to Arthur's father's residence from Reagan Mobile Homes at 6:11 p.m. Approximate driving time from Woolco to Cher's is 10 minutes and from Cher's to Reagan Mobile Homes is 20 minutes.

The work release center's records for February 1 show that Arthur signed out for work at 6:00 a.m., that he called for a ride from Reagan Homes to the center at 7:10 p.m., and that he arrived at the center at 7:50 p.m.

On February 1, an officer, at a school crossing, observed Wicker at approximately 7:40 a.m. driving east toward the airport and, about 10 minutes later, he observed her going back toward her house. He saw no one else with her either time.

Later that same morning, at 9:12 a.m., officers received a call to proceed to the victim's residence. There, they found the house to appear to have been ransacked. However, nothing was torn up or thrown around. Wicker was lying on the floor with her sister, Theresa, kneeling beside her. Wicker was crying and appeared to have been beaten. Her clothes were ripped. The victim's body was discovered on a bed in a bedroom. Four new .22 caliber expended cartridge cases, CCI brand, were found on the bed. Mini-Mag long rifle cartridges are consistent with this type of casing. Although four casings were found, the victim received only one bullet wound and there were no other bullet holes in the house. The officers found no indication of a forced entry. The murder weapon was never found. The hairs taken from the victim's clothes and, also, those vacuumed from the den were not Arthur's.

An autopsy was performed on the victim. The cause of death was a close range wound through the right eye while the eyelid was closed. A .22 caliber long rifle bullet was removed from the victim. This bullet severed the victim's brain stem.

About 11:00 a.m. on the day of the murder, Tines went to lunch with Arthur. During their visit, Arthur drove to the Interstate bridge over the Tennessee River; stopped...

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