Arthur v. State

• Decision Date: 11 June 2010
• Docket Number: CR–08–1944.
• Parties: Thomas Douglas ARTHURv.STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

71 So.3d 733

Thomas Douglas ARTHUR

v.STATE of Alabama.

CR–08–1944.

Court of Criminal Appeals of Alabama.

April 30, 2010.Rehearing Denied June 11, 2010.Certiorari Denied April 15, 2011

Alabama Supreme Court 1091292.

Andrew Brinkman, Suhana S. Han, Marc De Leeuw, and Jordan T. Razza, New York City, New York, for appellant.Troy King, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for appellee.WISE, Presiding Judge.

The appellant, Thomas Douglas Arthur, was convicted of capital murder and sentenced to death for the killing of Troy Wicker. The murder was made capital because he had been convicted of another murder in the twenty years preceding the crime. See § 13A–5–40(a)(13), Ala.Code 1975. After the Alabama Supreme Court reversed this court's judgment affirming that conviction, see Ex parte Arthur, 472 So.2d 665 (Ala.1985), Arthur was again convicted of capital murder and sentenced to death. That second conviction also was reversed, see Arthur v. State, 575 So.2d 1165 (Ala.Crim.App.1990), and he was convicted of capital murder and sentenced to death a third time. This court affirmed Arthur's conviction and sentence, see Arthur v. State, 711 So.2d 1031 (Ala.Crim.App.1996), and the Alabama Supreme Court affirmed his conviction and sentence, see Ex parte Arthur, 711 So.2d 1097 (Ala.1997). Since that time, Arthur has filed several post-conviction petitions. This appeal follows the denial of one of those petitions.

In Ex parte Arthur, 711 So.2d 1097, 1098 (Ala.1997), the Alabama Supreme Court summarized some of the facts of the case as follows:

“More than 20 years ago, Arthur's relationship with his common-law wife ultimately led to his brutally murdering a relative of the woman. Arthur shot the victim in the right eye with a pistol, causing nearly instant death. He was convicted in a 1977 trial and was sentenced to life imprisonment.

“While on work release during the life sentence, Arthur had an affair with a woman that ultimately led to his brutally murdering that woman's husband, Troy Wicker, in 1982. Arthur shot Wicker in the right eye with a pistol, causing nearly instant death.”

The trial court also set forth the following summary of the evidence in its sentencing order:

“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;

“ 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 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 possession of an inordinate amount of currency at the work release center.

“The defendant did not testify.”

(C.R. 22–26.)

Arthur was scheduled to be executed on July 31, 2008. On July 18, 2008, he filed a “Motion for Access to DNA Evidence Before July 31, 2008, Execution” in the Alabama Supreme Court, and the Alabama Supreme Court denied that motion on July 29, 2008. On July 29, 2008, Arthur filed an “Emergency Successive Petition for Relief from Conviction Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure” and an “Emergency Motion for Stay of Execution and Access to DNA Evidence Based on Newly Discovered Facts That Completely Exonerate Thomas D. Arthur” in the circuit court. He based his filings on an affidavit in which Bobby Ray Gilbert confessed to murdering the victim. On July 29, 2008, he also filed a “Motion to Stay Execution to Permit Rule 32 Litigation” in the Alabama Supreme Court. On July 30, 2008, the Alabama Supreme Court granted the motion for a stay and stayed Arthur's execution “pending further orders of this Court.” Subsequently, the State filed an application for a rehearing and a renewed motion to set an execution date. The Alabama Supreme Court...