Phillips v. State

• Decision Date: 04 October 1983
• Docket Number: 8 Div. 733
• Citation: 443 So.2d 1328
• Parties: John Wayne PHILLIPS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1328

443 So.2d 1328

John Wayne PHILLIPS v. STATE.

8 Div. 733.

Court of Criminal Appeals of Alabama.

Oct. 4, 1983.

Rehearing Denied Nov. 29, 1983.

Certiorari Denied Jan. 13, 1984

Alabama Supreme Court 83-285.

Robert M. Shipman, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North and Ed Carnes, Asst. Attys. Gen., for appellee.

JERRY M. WHITE, Circuit Judge.

John Wayne Phillips was charged with robbery wherein a person was intentionally killed (a capital offense) in Madison County. Upon a trial, he was convicted, adjudicated guilty, and sentenced to life without parole. This appeal follows.

During the early morning hours of February 12, 1981, the owner or part-owner of a night club in Huntsville, The Bridge Club, and a waitress who worked there, were killed during a robbery of the club. The present charge involves killing of the owner.

David Lynn Tibbetts, the State's primary witness, who admitted being the triggerman in the incident, testified under an agreement that the State would recommend as punishment two consecutive life sentences upon his pleas of guilty to the two murder charges.

Tibbetts and appellant had become acquainted in Oklahoma City in 1980. They had shared apartments and had traveled together quite a bit. According to the testimony of Tibbetts, he and appellant went to Huntsville from Oklahoma City in early February, 1981, for the purpose of obtaining and selling drugs. He testified that they burglarized several stores and veterinary clinics in order to steal money and drugs.

Tibbetts testified that on the evening of February 11, 1981, he went to a night club in Huntsville, at appellant's direction, to "check it out" for the purpose of burglarizing it later. Being unable to distinguish the type of burglar alarm system the night club had, he "became frightened by the situation and shied away from it." Tibbetts went to The Bridge Club, located directly across the street from the motel at which they were staying, "to check it out." Tibbetts went to The Bridge Club around midnight of the evening of February 11th, staying for about an hour until it closed. He called appellant from the night club after the closing hour and in response to appellant's questions, he told appellant that there was "probably a couple of thousand dollars" in the cash register and that four people, all employees, were in the club. According to Tibbetts, appellant then inquired whether Tibbetts could "rob the place." Tibbetts left the club as two of the employees, a dancer and a waiter, left. Tibbetts testified that he walked across the street to the motel and informed appellant, who was sitting in their car, that he could not "rob the place." According to Tibbetts, appellant stated that "the heat was on and we needed to get out of town."

Tibbetts stated that appellant asked him if he could get back in the place and Tibbetts told him that he could gain entry by using the excuse that he wanted to get his address book which he inadvertently left lying by the telephone. Tibbetts related that appellant encouraged him to go back to the club for the purpose of robbing it, and gave him the admonition "to leave no witnesses."

Tibbetts testified that he went back to the club, gaining entrance as he had planned. While he was in the process of the robbery, Tibbetts shot the owner of the club, McArthur Freeman. Mr. Freeman fired at Tibbetts, hitting him in the hand and shoulder. Tibbetts also shot and killed an employee of the club, Jackie Hobbs.

Tibbetts searched both victims for cash, getting about "$70 or $75" from Freeman and about "$35 or $40" from Hobbs. He then removed about $200 from the cash register, took Freeman's gun, and went back to the motel. He gave the money to appellant.

Appellant and Tibbetts left Huntsville shortly after these events and returned to Oklahoma City. Tibbetts testified that he and appellant burglarized several veterinary clinics to get drugs and money. Within a few days, they left Oklahoma City in the company of two females en route to Arizona or California. In the vicinity of Shamrock, Texas, the car in which they were riding developed water pump trouble, and they stopped at a service station, seeking assistance. Some disagreement ensued between appellant and the service station operator which culminated in appellant's flashing the pistol which had been taken off McArthur Freeman in Huntsville. They left the service station and a short time thereafter were stopped by the Texas Highway Patrol, who were looking for the car driven by appellant, in response to a disturbance call involving "a man with a gun."

The officers ordered the four occupants out of the car and placed them face down in the ditch. The occupants were searched for weapons, but none was found. The Shamrock, Texas, police chief arrived on the scene as the search of the occupants was being conducted. He walked over to their car and "pulled out a weapon from the front portion of the vehicle." Appellant was then arrested for "unlawfully carrying a weapon."

A computer check of the weapon's make, serial number and model revealed that it was the same weapon taken from the body of McArthur Freeman at the time of the robbery and double murder in Huntsville.

Tibbetts gave police officers a number of conflicting statements concerning his bullet wounds and the events leading up to the appellant's arrest.

I

In the hearing on his motion for a new trial, appellant adduced evidence that during the course of the trial one of the jurors discussed some facet or facets of the case with a non-juror. The juror admitted that taking part in the discussion was contrary to the trial judge's explicit instructions. There was some conflict in the evidence as to the contents of the discussion, and whether it took place before or after the conclusion of the trial. The uncontradicted evidence showed that the non-juror who contacted the juror was a friend of appellant and that the initial contact, and possibly the second one, were made at the request of appellant. Appellant argues that such juror misconduct warrants the granting of a new trial and that the trial court erred to reversal in its failure to grant such a motion. We are not so persuaded. Under the law, on the motion for new trial the trial court was charged with the duty and responsibility of determining, as a matter of fact, whether or not the alleged communications between the juror and the non-juror caused prejudice to the appellant. Cox v. State, 394 So.2d 103 (Ala.Cr.App.1981); Woods v. State, 367 So.2d 974 (Ala.Cr.App.1978); Bascom v. State, 344 So.2d 218 (Ala.Cr.App.1977). The trial court resolved that issue against the appellant by denying the motion for new trial, and we are not convinced that the court's discretion was abused in so doing. Additionally, the appellant certainly cannot be allowed to benefit by his own misconduct. The evidence clearly shows that he contacted the non-juror, his friend, several times prior to and during the trial, asking him to contact the juror in question. The friend did as he was asked, and now appellant seeks a reversal by activity which he himself set into motion. To allow such would be absurd.

II

Next the appellant contends that the trial court erred to reversal in allowing evidence of additional earlier criminal offenses committed by appellant and his co-defendant, to be introduced during the course of this trial. Generally, the law does not allow evidence of other acts which constitute independent and separate crimes to be introduced in the prosecution of an individual for a particular crime. There are a number of well-recognized exceptions to this rule, however. Hayes v. State, 384 So.2d 623 (Ala.Cr.App.), cert. denied, 384 So.2d 627 (Ala.1980), aff'd, 395 So.2d 127 (Ala....