Ex parte Tomlin

• Decision Date: 09 December 1983
• Citation: 443 So.2d 59
• Parties: Ex parte Phillip Wayne TOMLIN. (In re Phillip Wayne Tomlin v. State of Alabama). 79-288.
• Court: Alabama Supreme Court

Page 59

443 So.2d 59

Ex parte Phillip Wayne TOMLIN (In re Phillip Wayne Tomlin v. State of Alabama).

79-288.

Supreme Court of Alabama.

Dec. 9, 1983.

Richard D. Horne, Mobile, for petitioner.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for respondent.

ON APPLICATION FOR REHEARING

FAULKNER, Justice.

Phillip Wayne Tomlin was convicted under Alabama's 1975 death penalty statute of first degree murder wherein two or more people are intentionally killed by one or a series of acts and of first degree murder done for a pecuniary or other valuable consideration or pursuant to a contract or for hire. Sections 13-11-2(a)(10) and (7), Code of Alabama (1975) (repealed). The trial court held a sentencing hearing and entered an order setting out its findings as to aggravating and mitigating circumstance and sentencing the defendant to death. On appeal the Court of Criminal Appeals, 443 So.2d 47, affirmed the defendant's conviction, but found the trial court's sentencing order defective in several aspects. It entered an order remanding the cause with instructions to the trial court to amend its sentencing order to comply with the Court of Criminal Appeals' decision.

While Tomlin's petition for writ of certiorari was pending before this court, the United States Supreme Court handed down Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), in which it found Alabama's 1975 death penalty statute defective because the preclusion clause in the act prohibited juries from considering any lesser included offenses. Because we interpreted Beck v. Alabama to require that all defendants theretofore convicted under that statute be granted new trials, we entered an order reversing Tomlin's conviction.

The State filed an application for rehearing in which it asked us to reconsider our interpretation of Beck v. Alabama. While the application for rehearing was pending, the Supreme Court released its opinion in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Evans had been convicted and sentenced to death after testifying that he intentionally shot the proprietor of a pawnshop during a robbery. Because Evans suggested no plausible claim not contradicted by his own testimony at trial which would entitle him to a jury instruction on a lesser included offense, the Court ruled that he had not been prejudiced by the preclusion clause. It concluded, therefore, that Evans was not entitled to a new trial. Hopper, supra, 456 U.S. at 613-14, 102 S.Ct. at 2054. We hereby withdraw our previous opinion in this case in order to enter an order in accordance with Hopper and its progeny.

A defendant convicted under § 13-11-2 of the 1975 statute is entitled to a new trial because of the preclusion clause in the statute if there was evidence introduced at trial which would have warranted a jury instruction on a lesser included offense or if the defendant suggests any plausible claim not contradicted by his own testimony which he might conceivably have made which would have entitled him to a jury instruction on a lesser included offense. Cook v. State, 431 So.2d 1322, 1324 (Ala.1983).

Tomlin testified that he was in Texas at the time of the killings. We examined in Cook v. State, supra, the effect of an alibi defense on the question of whether a defendant convicted under the 1975 death penalty statute is entitled to a new trial because of the preclusion clause. We concluded that when a defendant testified that he was in a distant location when the crime was committed, his own testimony directly contradicted any evidence he might have introduced to show that he was guilty of a lesser included offense. Cook, supra, at 1325.

Cook is clearly controlling here. The petitioner argued that, but for the preclusion clause, he might have introduced evidence that Daniels, who was allegedly with Tomlin at the time in question, did the killing, or that Tomlin intentionally killed only one of the victims, or that Tomlin was under the influence of drugs at the time of the killings. All of the claims suggested by the petitioner are, however, in conflict with Tomlin's own testimony. Tomlin is not, therefore, entitled to a new trial based on the presence of the preclusion clause in the statute.

Tomlin raised the following additional issues in his petition for writ of certiorari:

(1) Whether counts one and three of the indictment were defective;

(2) Whether the trial court should have refused to allow the State to call a witness omitted from a list of potential witnesses supplied by the State;

(3) Whether the trial court should have granted a motion to exclude as to count two of the indictment which charged the defendant with murder for pecuniary or other valuable consideration or pursuant to a contract or for hire;

(4) Whether the jury charge was sufficient;

(5) Whether the verdict form was sufficient;

(6) Whether the trial court properly responded to questions from the jury as to what would happen in the event of a hung jury.

I SUFFICIENCY OF COUNTS ONE AND THREE OF THE INDICTMENT

Tomlin did not file his demurrer to the indictment until after the jury was empaneled. By appearing and entering a plea at his arraignment, the petitioner waived any irregularities in the indictment unless the indictment was so defective that it left the accused unaware of the nature and cause of the charges against him. Canada v. State, 421 So.2d 140, 145 (Ala.Cr.App.1982).

Omitting the formal parts of the indictment, count one charges that Tomlin:

"... did unlawfully, and with malice aforethought kill Richard Brune and Cheryl Moore by, towit: On January 2, 1977, at a location on or near Interstate 10 in Mobile County, Alabama, was shot with a gun, [sic] in violation of Act Number 213, Section 2, Sub-Section J (Act # 213, § 2(j)), Acts of Alabama, Regular Session, 1975, against the peace and dignity of the State of Alabama."

Petitioner's contention that count one charged no more than first degree murder of two persons is not well taken. The capital murder statute does require that the victim be killed by "one or a series of acts," an allegation omitted from count one of the indictment. The omission did not, however, leave the defendant unaware of the nature and cause of the charge against him in light of the reference to the death penalty statute by act number in each count of the indictment.

Count three alleged, in pertinent part, that Tomlin:

"... did unlawfully, intentionally, and with malice aforethought kill Richard Brune and Cheryl Moore, by shooting them with a gun, wherein both Richard Brune and Cheryl Moore were intentionally killed by PHILLIP WAYNE TOMLIN by one or a series of acts, in violation of Act Number 213, Section 2, Sub-Section J (Act # 213, § 2(j)) and Act Number 213, Section 6, Sub-Section H (Act # 213, § 6(h)), Acts of Alabama, Regular Session, 1975, in that said killings were especially heinous, atrocious or cruel...."

Count three was, if anything, overinclusive. We disagree with petitioner's argument that the State failed to prove that the murders were "especially heinous, atrocious or cruel." The State introduced evidence that Tomlin had planned to kill Ricky Brune for over nine months. He traveled from Texas to Mobile with a "hit man" for the express purpose of carrying out his plan to kill Brune. Tomlin and Daniels apparently gained entry into the back seat of Brune's car, and then shot not only Brune but also his fifteen-year-old companion in the back with a shotgun and a pistol. We are not inclined to rule as a matter of law that the murders were not especially heinous, atrocious or cruel.

II FAILURE OF THE STATE TO DISCLOSE THE IDENTITY OF A WITNESS PRIOR TO TRIAL

About nine months prior to the killings, two officers from the Texas Department of Public Safety, operating undercover, talked with the petitioner at a night club in Houston, Texas, in connection with an investigation of illegal drug trafficking. During the conversation Tomlin allegedly stated that he intended to go to Alabama to "kill someone." Tomlin was subsequently prosecuted in Texas on a drug charge but was not convicted. His case was nol-prossed after a mistrial.

The trial court in the instant case ordered the State to submit to the defendant list of the witnesses it intended to call at trial. The list included one of the two Texas police officers. At trial the State called both officers, who testified to their conversation with Tomlin. Petitioner objected to the testimony of the unlisted witness, Officer Hebison. On appeal he argued that, had he known Hebison was going to testify, he would have acquired a transcript of the Texas proceedings in order to facilitate his cross-examination of Hebison.

We fail to see how inclusion of both officers' names would have provided any better notice of the need to obtain the Texas transcript than was afforded by the inclusion of one of their names. Both testified to substantially the same facts. If, indeed, there was any error, it was harmless. A.R.A.P. 45.

III WHETHER A MOTION TO EXCLUDE SHOULD HAVE BEEN GRANTED AS TO COUNT TWO

Count two charged that the killings were done for pecuniary or other valuable consideration or pursuant to a...