Arthur v. State, 8 Div. 873

• Decision Date: 10 April 1984
• Docket Number: 8 Div. 873
• Citation: 472 So.2d 650
• Parties: Thomas D. ARTHUR, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 650

472 So.2d 650

Thomas D. ARTHUR, alias v. STATE.

8 Div. 873.

Court of Criminal Appeals of Alabama.

April 10, 1984.

As Corrected on Denial of Rehearing

May 8, 1984.

Wesley M. Lavender and John E. Mays, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little and Jean Williams Brown, Asst. Attys. Gen., for appellee.

TYSON, Judge.

Thomas Douglas Arthur was indicted and tried for the capital murder of Troy Wicker, whom he shot once with a pistol through the right eye. Mr. Arthur, the appellant herein, was indicted, pursuant to § 13A-5-40(a)(13), Code of Alabama 1975, for "murder by a defendant who has been convicted of any other murder in the 20 years preceeding the crime."

The jury returned a verdict of "guilty as charged in the indictment," and, after a separate sentencing-phase hearing, fixed appellant's punishment at death. The trial court, after its separate sentencing-phase hearing and in accordance with the jury's verdict, sentenced the appellant to death by electrocution.

Eddie Lang was employed as a patrol officer with the Muscle Shoals Police Department on February 1, 1982. He testified that on that morning he was working with the early morning school traffic when he saw Judy Wicker drive through the school crossing at approximately 7:45 a.m.; at this time she was headed east toward the airport. He saw her again, approximately ten minutes later, headed west. He stated that he did not see anyone in the car with Mrs. Wicker.

Officer Lang further testified that he went on routine patrol and at 9:12 a.m., he responded to a call at the home of Judy and Troy Wicker. He stated that Officer Coan arrived there at about the same time. Officer Lang testified that he found no sign of forced entry into the house. He said that when he entered the house, he found Mrs. Wicker lying on the floor and her sister, Teresa Rowland, was kneeling beside her. He stated that Mrs. Wicker was bleeding around her mouth and had scratch marks on the side of her face.

Officer Lang testified that he looked through the house and that furniture was overturned, and closets and drawers had been emptied onto the floor. He stated that he found Troy Wicker in bed, shot through the right eye.

Officer Lanny Coan was employed as a patrolman with the Muscle Shoals Police Department. He stated that he also responded to the call on February 1, 1982, at the home of Judy and Troy Wicker. He stated that upon arriving at the scene, Teresa Rowland met him outside the house and told him something was wrong with Judy Wicker. Officer Coan said that upon entering the home he found Mrs. Wicker lying on the floor and bleeding from her mouth.

Joseph Wallace was employed as a criminologist with the Alabama Department of Forensic Science in Florence, Alabama. He was called to the Wicker home to aid the police in processing the scene. He testified that he gathered various items of evidence from the home, including articles of clothing and several jars. He said he removed four spent cartridge casings from Troy Wicker's bed. He sent these casings to the Huntsville lab. He testified that he left the Wicker home and went to the parking lot of Northeast Alabama State Junior College. There he examined a maroon Buick automobile for evidence. He said that he removed hair samples from under the headrest and from the floor of the automobile. He sent these samples to the Huntsville lab.

Dr. Josefino Aguilar was employed as a forensic pathologist with the Alabama Department of Forensic Sciences. He testified that he performed a post-mortem examination on Troy Wicker on February 2, 1982, which revealed that Mr. Wicker had a Brent Wheeler was employed as a criminologist with the Alabama Department of Forensic Sciences. He was in charge of evidence related to firearms cases, and was the director of the Huntsville lab. Mr. Wheeler testified that he examined a .22 caliber bullet which had been removed from Mr. Wicker's body, and turned over to him by Dr. Aguilar. He said that he examined four .22 caliber cartridge casings turned over to him by Joseph Wallace. He stated that the four casings were fired from the same weapon, and that these four casings were manufactured by C.C.I.. He further stated that he could not determine if the bullet removed from the victim had come from any one of the four casings he examined.

single gunshot wound to his right eyelid. He said that this gunshot severed Mr. Wicker's brain stem, causing his death. Dr. Aguilar removed the bullet and submitted it to Brent Wheeler, a firearms expert.

John Kilbourn was employed with the Alabama Department of Forensic Sciences and was a specialist in microscopic analysis and trace evidence analysis. He testified that he examined hair samples, sent to him by Joseph Wallace, which had been removed from a Buick automobile. He stated that the hair samples were Negroid type and that such hair had been forcibly removed.

Joel Reagan owned a mobile home business. He testified that he had known the appellant for approximately ten years. He said that when the appellant was convicted of his first murder, he promised the appellant that he would give the appellant a job if appellant was placed on work release. The appellant was placed on work release and did do work for Mr. Reagan. He testified that appellant often did not show up for work.

Mr. Reagan further testified that the appellant had introduced him to Mrs. Wicker, and that he had seen her at his place of business on at least two occasions. He said that the appellant had used his business telephone to make personal long distance calls. He testified, based on copies of his telephone bill, that the appellant had made more than one hundred sixty-seven personal long distance calls, many of which were to the Wicker home.

Deborah Tines testified that she had worked as the manager of Cher's Lounge in Huntsville, Alabama, in February of 1982. She said that she had known the appellant since December of 1981, and had seen him socially. She testified that on or about February 1, 1982, she rode towards Decatur with the appellant. She stated that when they were crossing a bridge, the appellant stopped his car and threw a bundle wrapped in a sheet over the bridge. She testified that the appellant said he was "getting rid of some old memories." (R. 1202) She testified that the appellant appeared nervous and agitated.

Ms. Tines testified that when the appellant first began coming to the lounge to see her, he always drank soft drinks, but later on he began drinking hard liquor. She further testified that in the middle of January, 1982, the appellant questioned her as to whether she ever got any "hot" guns through the lounge. She stated that she had previously told appellant on this same occasion that she carried two weapons--a .22 and a .25 caliber weapon.

Patricia Yarbrough testified that she had worked at Cher's Lounge from December, 1981, through February, 1982. She stated that she met the appellant at the lounge and he told her that he was on work release. She testified that on January 31, 1982, the appellant was in the lounge and told her he needed someone to go get some .22 long rifle C.C.I. Mini-mag bullets. She testified that she sent for her roommate, Terry Lewis, and the appellant gave her ten dollars. She said that she gave the money to Mr. Lewis and he went to purchase the bullets. She said that Mr. Lewis returned with the bullets, gave them to her, and she in turn gave them to the appellant. She further testified that the appellant told her not to worry about getting into trouble because the bullets were Terry Lewis testified that on January 31, 1982, he was summoned to go see Patsy Yarbrough at Cher's Lounge. He stated that when he arrived at the lounge, Ms. Yarbrough gave him a slip of paper and told him to buy some .22 caliber Mini-Mags. He testified that the bullets he purchased were manufactured by C.C.I.

going to be used to kill someone in Tennessee and could not be traced.

Gene Moon testified that he talked with the appellant on January 31, 1982, and that the appellant asked him if he thought Patsy Yarbrough would tell she had procured bullets for appellant. He further stated that the appellant told him that he was going to make some money on the following day.

David Jones was employed as the director of the work release center in Decatur, Alabama. He testified that he was custodian of the records at the center and he brought to court records showing that on January 31, 1982, appellant signed out of the center at 9:30 a.m. and returned to the center at 6:55 p.m. Mr. Jones' records also showed that on February 1, 1982, appellant left the center at 6:00 a.m. and returned at 7:50 that night.

Mr. Jones testified that the appellant was taken off of work release because of a discrepancy between the number of hours he was away from the center and the number of hours he was actually paid for working. He stated that when the appellant was placed in the county jail, his personal belongings were inventoried and $2,000 in cash was discovered in appellant's possession.

Wanda Luther testified that she had seen the appellant at a New Year's party with Judy Wicker on December 31, 1981.

Mary Smith was the mother of Judy Wicker and Teresa Rowland. She testified that she met the appellant after Troy Wicker was killed. She testified that she heard the appellant and Judy Wicker discussing marriage.

Teresa Rowland testified that on February 1, 1982, the appellant telephoned her and asked her to pick him up so that he could meet Judy Wicker. She stated that she picked him up at the Sheffield water tower and they met Judy close to the airport. She said that while en route to meet Mrs. Wicker, the appellant told her that he loved Judy Wicker very much. She said that he then told her if she ever told anyone about his meeting Judy Wicker, he would get her or a friend of his would do so. She said that he was drinking hard liquor...