Thomas v. State

• Decision Date: 30 December 1999
• Citation: 824 So.2d 1
• Parties: Billy Jack THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

824 So.2d 1

Billy Jack THOMAS v. STATE.

CR-96-0876.

Court of Criminal Appeals of Alabama.

December 30, 1999.

Opinion on Return to Remand June 30, 2000.

Opinion on Return to Second Remand October 26, 2001.

Opinion on Denial of Rehearing December 21, 2001.

W. Lloyd Copeland, Mobile; T. Jefferson Deen III, Mobile; and W. Gregory Hughes, Mobile, for appellant.

Bill Pryor, atty. gen.; and Sandra J. Stewart, Michelle Riley Stephens, A. Vernon Barnett IV, and Thomas E. Harrison, asst. attys. gen., for appellee.

PATTERSON, Retired Appellate Judge.

The appellant, Billy Jack Thomas, appeals from his convictions for the capital offenses of murder of B.W.L. during a rape in the first degree, § 13A-5-40(a)(3), Code of Alabama 1975 (charged in Count I of the indictment) and of murder of B.W.L. during a burglary in the first degree, § 13A-5-40(a)(3). The jury unanimously recommended death on Thomas's conviction under Count I and recommended, by a vote of 10 to 2, death on Thomas's conviction under Count II. The trial court subsequently sentenced Thomas to death, after considering the jury's recommendations and finding the following aggravating circumstances: that the capital offenses were committed by a person under sentence of imprisonment, as evidenced by Thomas's two prior convictions, § 13A-5-49(1); one of the capital offenses was committed while Thomas was engaged in the commission of rape, § 13A-5-49(4); ore of the capital offenses was committed while Thomas was engaged in the commission of burglary, § 13A-5-49(4); and the capital offenses were especially heinous, atrocious, or cruel compared to other capital offenses, § 13A-5-49(8). In regard to any possible mitigating circumstances, the trial court's order states: "The Court finds that the defendant chose to adopt the testimony of his mother and former wife, offered during the penalty phase, as to his family status as mitigating factors pursuant to § 13A-5-51 and § 13A-5-52." (C.R.19.) At trial, the prosecution's evidence indicated the following: The victim and her husband lived in a duplex apartment. The other apartment in the duplex was occupied by Patrick Johnson. When the victim's husband, T.L., returned home from work on the evening of August 11, 1995, he and the victim had an argument about her needing money. During this argument, T.L. grabbed her around her neck and shoved her twice, one time against a wall and one time onto the sofa. Then, after going to the next-door apartment where he apologized to Johnson for any noise during the argument, T.L. left and went to a party. He left after 8:00 p.m., wearing white pants and a white shirt.

After T.L. left, the victim went outside. She was crying. She was comforted by Johnson, along with Johnson's mother and sister. During this time, Thomas walked up to the group. Johnson had seen him in the neighborhood only once or twice; he had never seen him hanging around the victim's apartment; and he did not know his name. However, the victim appeared to know Thomas. Comforting the victim, Johnson's sister and Thomas hugged her. After Johnson's mother and sister left, Thomas and the victim walked across the street to a telephone. After the victim made a telephone call, she returned to the duplex alone and Thomas walked down the street. The victim and Johnson talked and drank beer on Johnson's front porch until about 11:30 p.m. During their conversation, the victim told Johnson that she and Thomas had attended school together. (The victim's husband testified at trial that he had never seen Thomas before.)

In the meantime, John Law¹ saw Thomas, and Thomas asked him to "get high" with him. Around 9:00 p.m., they went to William Lott's residence in Alabama Village. (Lott² testified that Thomas and Law arrived between 11:00 p.m. and midnight. Lott testified, "I smoke[d] crack with ... several people who come back and forth to my house." (R. 242.)) There, Thomas drank and smoked crack cocaine with Law. After 45 minutes, they left because Law "had a little job [he] had to do, but the person wasn't at home," (R. 230), so they returned again between 11:00 p.m. and 12:00 p.m. (According to Lott, they did not leave his residence this time until 12:30 a.m. or 1:00 a.m.) On this second visit, Thomas asked Law to stay at Lott's until he got back, and then Thomas left again, this time alone.

In the meantime, around 11:30 p.m. or midnight, Johnson left the duplex and walked to a friend's house around the corner. On the way, he saw Thomas walking toward the duplex. Although they passed within inches of each other and Johnson greeted him, Thomas did not acknowledge Johnson. Johnson described in his trial testimony the following series of events, which happened as he was walking back to the duplex about 12:30 a.m.:

"[I]n between the time that it take me to walk around from around the corner behind there, about halfway, I heard a lot of noise over there in our yard....

"And as I heard, I speeded up. The dog was barking real loud. I heard a loud noise.... [W]hen I got to the edge of the driveway, I said, `Who's back there?' or I said, `Hey, what's going on?'.... And at that time, the noise stopped.

"So, when the noise stopped, I walked around on my side and pulled the shovel from up under the house ... and I went to the back and walked halfway down [B.W.L.'s] side and I didn't see nothing, so I walked back around the front. And when I walked back around the front, [Thomas] popped up out of nowhere.... He was breathing hard. He said, `You think [B.W.L.] was at home?' I said, `Well, she was there not too long ago when I left. You know, she told me she was going in the house and go to sleep....'"

(R. 207-08.) Johnson more specifically described the noise: "It was loud noises. I knew somebody had to be breaking into something.... It was like somebody beating, maybe beating on the door or trying to open something." (R. 211.) He also further described Thomas's physical condition when he saw him this last time: "It looked like he had been running in a marathon. It was like he was tired and his eyes was big. He was sweating. I see sweat popping off his face." (R. 244.) After Johnson answered Thomas's question about B.W.L., Thomas sat down on the duplex steps and asked Johnson for a cigarette. Johnson told him he did not have one. Johnson then went in his apartment, armed himself with a kitchen knife, went back outside, and after seeing no one, he went back inside. Johnson did not see the victim's husband's car at their apartment that night, nor did he see it there the next morning.

The victim's husband stayed at the party until around midnight. After leaving the party, he took his brother home. About 12:30 a.m., he left his brother's house. He arrived at his mother's residence at 12:55 a.m., the time noted by his sister on her clock when she saw a car drive into the driveway. (She subsequently recollected that, when he arrived that early morning, his white clothes had no blood on them, and he looked normal.) They talked for about 35 to 40 minutes until she went to bed about 1:30 a.m. Thereafter, T.L. watched a movie, and went to sleep.

In the early morning hours (around 3:00 a.m. to 4:00 a.m. according to Lott, but about 1:45 a.m. or 2:00 a.m., according to Law), Thomas returned to Lott's residence. He had, in his possession, a video-cassette recorder, a gold necklace, and a two-piece wedding band set. When he came to the door, he said, "Won't somebody come help me with this shit?" (R. 236.) He said he was going to sell the items. Lott asked, "Where did you get these this time of the night, man?" (R. 240-41.) Thomas answered, "Man, they're dead cold. They're dead asleep." (R. 241.) Thomas asked Lott if he knew anyone who would buy the items. Lott was unsuccessful at a sole attempt to sell them. Thomas thereafter left at around 2:20 a.m. (according to Law). He later returned with "some dope." Because Thomas had "dope" with him when he returned, Lott surmised that Thomas had sold the items. In the meantime, Law had gotten tired of waiting for Thomas, so he had gone to a friend's house and gone to sleep. Close to daybreak, Thomas woke Law up and wanted him to get high with him. Law declined.

At 8:00 a.m., the victim's brother arrived at the victim's home to check on her pursuant to their mother's telephone call to him. No one answered his knock on the screen door. When he knocked on the wooden door, it "flew open." (R. 260.) He entered and found the victim lying face-down on her bed. When he touched her, she was stiff. A piece of a curtain and a cord were around her neck. (Forensics collected a piece of cord from a Nintendo videogame unit from the bed.) Her panties were pulled down and were around her right leg. Her shirt was pulled up around her neck. A moderate amount of blood was visible, and a knife was on the bed. After noting that the baby was asleep in her crib a few feet from her mother's body, the victim's brother went to a telephone across the street and summoned help by telephoning the emergency 911 number.

T.L. dropped his sister off at a grocery store at about 8:30 a.m. and returned home. A crowd had gathered in front of the duplex. Without being told that his wife had been murdered, he was taken to the police station and questioned. The police seized the all-white outfit he was wearing, which he had also worn the previous evening. (No bloodstains were found by a subsequent forensic examination of these clothes.) At the scene, police found the victim's purse and its contents outside by the side-door steps. What appeared to be the contents of a purse were found on the couch and on the floor in front of that couch in the living room.

After T.L. was allowed to return to his residence, he discovered the following missing: a videocassette recorder; his and the victim's tennis shoes; the victim's three rings, including her wedding rings; and a necklace. He also observed a window broken in their kitchen. Forensic scientists...