Arthur v. State

• Decision Date: 08 March 1996
• Docket Number: CR-91-718
• Citation: 711 So.2d 1031
• Parties: Thomas Douglas ARTHUR v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1031

711 So.2d 1031

Thomas Douglas ARTHUR v. STATE.

CR-91-718.

Court of Criminal Appeals of Alabama.

March 8, 1996.

Rehearing Denied Aug. 23, 1996.

Page 1042

Kevin M. Doyle, Montgomery (appearance entered April 16, 1992).

Barry J. Fisher, Atlanta, Georgia (appearance entered April 16, 1992; withdrew May 26, 1995).

Thomas Douglas Arthur, pro se.

Jeff Sessions and Bill Pryor, attys. gen., Andy Poole, Melissa Math, Kenneth Nunnelley, asst. attys. gen., for appellee.

McMILLAN, Judge.

This appeals follows the appellant's third trial for the killing of Troy Wicker. The appellant was convicted of capital murder and sentenced to death by electrocution in each of the three trials. The Alabama Supreme Court reversed the appellant's first conviction, holding that details of the appellant's prior second degree murder conviction were improperly admitted at trial under the

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identity exception to the general exclusionary rule. Ex parte Arthur, 472 So.2d 665 (Ala.1985). The appellant was again convicted of capital murder and was sentenced to death by electrocution. However, this court reversed his second conviction, holding that the admission into evidence a statement made by the appellant to a police officer two weeks after the appellant had asserted his right to remain silent constituted plain error because the appellant did not initiate the conversation and there was no evidence that he had been given access to an attorney following assertion of his right to remain silent. This court held that the statement probably had an unfair prejudicial impact on the jury. Arthur v. State, 575 So.2d 1165 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1191 (1991).

Following this second reversal, the appellant was charged in a two-count indictment with the intentional murder of Troy Wicker by shooting him with a pistol, made capital because he had previously been convicted of murder in the second degree in 1977, see § 13A-5-40(a)(13), Code of Alabama 1975, and with capital murder for intentionally causing the death of Troy Wicker by shooting him with a pistol for pecuniary or other valuable consideration, see § 13A-5-40(a)(7), Code of Alabama 1975. Before submitting the case to the jury at the guilt phase, the prosecutor elected to proceed only under the first count of the indictment. The jury found the appellant guilty of capital murder as charged in this first count of the indictment. The jury subsequently returned an advisory verdict of death by electrocution by a vote of 11 to 1. Following a separate sentencing hearing, the trial court upheld the jury's advisory verdict and sentenced the appellant to death by electrocution.

This court set on the earlier appeal out a complete rendition of the evidence presented at the appellant's second trial. Arthur v. State, 575 So.2d at 1167-70. That evidence is substantially similar to that presented in the third trial, but there were some differences: changes in the testimony of State's witness Judy Wicker; the testimony by witness, Gene Moon, was offered on behalf of the appellant at the third trial rather than for the State as in the second trial; and certain evidence that was admitted at the second trial was not entered into evidence at the third trial. For this reason, the trial court's "Findings of Fact From the Trial," which briefly sets out the evidence presented at the third trial, is included ¹:

"State's case:

"Thirteen witnesses testified for the state, the state's case being bottomed on the testimony of accomplice Judy Wicker, Wicker having been indicted and convicted by a jury verdict for the intentional murder of her husband, Troy Wicker.

"Wicker's conviction and life sentence were affirmed in May, 1983 at Mary Jewel Wicker v. State, 433 So.2d 1190. Wicker was in state custody when she testified on Wednesday of the trial week.

"Proceeding Wicker's testimony:

"Eddie Lang, sergeant with Muscle Shoals Police Department, testified about observations of Ms. Wicker's movements on the morning of the killing, February 1, 1982, and his observations of the house where the deceased was murdered;

"Joseph Gary Wallace of the Department of Forensic Sciences, lab director in Florence in 1982, testified about his observations at the scene, the gathering and transfer of physical items from a certain Buick Riviera vehicle;

"Brent Wheeler and John Kilbourne of the Huntsville forensic lab testified about lab procedure;

"Joel Reagan, who ran a mobile home sales lot testified about the defendant's employment at his place of business;

"Talmadge Sterling, correctional officer at the Decatur Work Release Center, testified about defendant's residency at the center as did Pat Halliday, employed at the center, who testified about a discrepancy in the defendant's payroll records;

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"Pat Yarbrough Green, who testified that she became acquainted with defendant at Cher's Lounge (Ms. Green was employed at Cher's Lounge in 'parole' status, having suffered several felony convictions); that defendant wanted to talk privately at the lounge; that in the kitchen he asked the witness, 'Can you get me some bullets? Has to be .22 caliber mini mag long rifles.' [sic]; that she enlisted the services of a third person to go across the street to buy the bullets; that the defendant gave her $10.00 for the bullets; that while waiting on the delivery of the bullets the defendant stated, 'Someone will be killed in Tennessee. Don't worry, it won't be traced to us.' [sic]; also, that defendant asked witness if she had access to 'jars' or knockout pills and asked if she knew where defendant could get some jars/pills; that she gave the .22 bullets to the defendant;

"Debra Lynn Phillips Tynes, manager of Cher's Lounge and defendant's paramour, states that on the day of the killing the defendant was late for a lunch date, that ultimately defendant and she went for a car ride across the Tennessee River Bridge; that defendant stopped the car and threw into the river a 'plain black garbage bag' wrapped in a sheet, stating that 'I want to get rid of some old memories';

"Dr. Pirl, toxicologist, stated that there was no ethanol in the deceased's body nor could he detect any narcotics;

"Dr. Aquilar testified as to cause of death; that deceased was shot at close range through the closed right eye;

"James Otis Garrard, clerk of the circuit court of Marion County testified re[garding] Court Exhibit # 40, court documentation reflective of defendant's prior conviction for second [degree] murder;

"Judy Wicker, who at the time of her testimony in the latest trial resided at a work release center in Wetumpka, serving a life sentence as accomplice to her husband's murder, stated that she lived in Muscle Shoals in 1982 with her husband, their two sons, ages five and seven, and a daughter by a prior marriage; that Troy, her husband, worked on a barge as an engineer; that her marriage(s) to Troy had been marked by intermittent discord; that Troy and her sister, Teresa, did not get along; that Teresa's boyfriend was Theron McKinney; that she met Arthur when they were young and worked with him at Tidwell Homes; that she and Teresa discussed killing Troy in early 1981; that several conversations occurred between she and Teresa re[garding] killing Troy; that there was $90,000 worth of life insurance on Troy's life; that the defendant Arthur called her by phone and stated 'I'm hired to do a job--kill your husband'; that about one week after the phone call she and Arthur met at Arthur's father's house or at Reagan's Mobile Homes; that there were sexual encounters between she and Arthur; that she knew the day of February 1 that this was the day her husband was to be killed; that the night preceding the killing she, her husband and Teresa had a drinking party at the Wicker home; that she dropped the children at school on February 1, met ... her sister, finally getting together with Teresa 'out by the airport'; that Teresa was driving a Riviera; that defendant was with her, 'made up' to look like a black man--face blackened, wearing an Afro wig and gloves; that Arthur got out of Teresa's car and into her car; that she smelled alcohol on his breath; that he had a pistol plus a garbage bag; that en route to the Wicker home she asked Arthur not to 'do it,' 'I'll give you money or whatever'; that Arthur stated 'The SOB deserves to die'; that she had left her husband in bed asleep; that upon entering the house defendant began destroying things. 'We went to the bedroom, I ran but I heard the shot. I ran to the utility room--'; further, that she ended up in the den, receiving a blow to the head 'battering my head badly, knocking out some teeth, upper lip cut into my nose. I didn't have an upper lip.' [sic]; that previously it had been established that she was to say that her and Troy's home was burglarized and she was assaulted by a black man; the first persons she saw on regaining consciousness were her sister and a detective; that after the killing she and Arthur continued to talk, go places

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together; that upon receipt of the insurance money witness paid Arthur $10,000, paid her sister, Teresa, $6,000 and Theron McKinney received some jewelry and a Trans Am automobile.

"Witness Wicker was thoroughly cross-examined by [defense counsel] as to the prior contradictory statements she made to the police and under oath at her trial, as to what she expected to gain from testifying.

"The defense case featured four witnesses:

"Officer Coan, a scene witness;

"Bruce Carrol, an inmate at St. Clair prison who stated he lost $6,500 to the defendant in a poker game;

"Ronald Spears, an inmate at West Jefferson prison who stated that Patsy Yarbrough Green had previously stated to him 'The cops told me to lie on Tommy re[garding] the .22 bullets';

"Gene Moon, residing in Cullman County Jail, stated that 'Inmate Murry gave me an envelope with $2,000 in it and I put it in Tommy's coat,' thus accounting for the defendant's...