Tomlin v. State

Decision Date31 May 2002
Citation909 So.2d 213
PartiesPhillip Wayne TOMLIN v. STATE of Alabama.
CourtAlabama Court of Criminal Appeals

Bernard E. Harcourt, New York, New York, for appellant.

William H. Pryor, Jr., atty. gen., and James R. Houts and Kristi L. Deason, asst. attys. gen., for appellee.

McMILLAN, Presiding Judge.

The appellant, Phillip Wayne Tomlin, appeals his conviction for the intentional murders of Ricky Brune and Cheryl Moore, an offense punishable by death because two or more people were intentionally killed pursuant to one act or a series of acts. See § 13-11-2(a)(10), Ala.Code 1975, repealed.1 Tomlin moved that the trial court accept the previously entered jury recommendation of 12-0 for life imprisonment without the possibility of parole. After a sentencing hearing before the trial court, the court ordered that Tomlin be sentenced to death by electrocution.

This case has a long and complicated procedural history. In 1978, Tomlin was tried and convicted for the double murder of Brune and Moore. This Court affirmed Tomlin's conviction but remanded the case for the trial court to correct its sentencing order. See Tomlin v. State, 443 So.2d 47 (Ala.Crim.App.1979). While Tomlin's case was pending on certiorari review in the Alabama Supreme Court, the United States Supreme Court released its decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The United States Supreme Court in Beck, held that the death-penalty statute under which Tomlin had been convicted was defective because it did not allow a jury to consider any lesser-included offenses. The Alabama Supreme Court ordered that Tomlin be retried based on Beck v. Alabama. Again, while the case was pending on application for rehearing in the Alabama Supreme Court, the United States Supreme Court released its decision in Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). In Hopper, the Court held that because the defendant had admitted that he intentionally shot the victim there was no prejudice in the trial court's failure to instruct the jury on any lesser-included offenses. In light of the Court's decision in Hopper, the Alabama Supreme Court withdrew its order directing that Tomlin be granted a new trial and found no prejudice because Tomlin presented an alibi defense. Tomlin v. State, 443 So.2d 59 (Ala.1983). This Court thereafter affirmed Tomlin's conviction and sentence after the trial court corrected its written findings. Tomlin v. State, 516 So.2d 790 (Ala.Crim.App.1986). On second application for rehearing, the Alabama Supreme Court reversed Tomlin's conviction, finding plain error in the prosecutor's closing argument. The court found that the argument implied that the trial court believed that there was sufficient evidence to convict Tomlin. See Ex parte Tomlin, 540 So.2d 668 (Ala.1988).

In 1990, Tomlin was retried on the capital charges and again convicted. On appeal, this Court reversed Tomlin's conviction because of prosecutorial misconduct — the prosecutor presented evidence indicating that Tomlin's codefendant, John Daniels,2 was awaiting execution on Alabama's death row. This Court also cited numerous other instances that warranted a new trial. See Tomlin v. State, 591 So.2d 550 (Ala.Crim.App.1991).

In 1993, Tomlin was tried and convicted for the third time. This conviction was reversed because of juror misconduct — several jurors failed to disclose certain information during voir dire examination. See Tomlin v. State, 695 So.2d 157 (Ala. Crim.App.1996).

In 1999, Tomlin was tried for a fourth time and was convicted. It is from this fourth conviction and sentence of death that Tomlin now appeals.

The State's evidence has been detailed in the previous opinions of this Court. See Tomlin v. State, 443 So.2d 47, 516 So.2d 790, and 591 So.2d 550. The evidence presented at Tomlin's fourth trial did not vary in any great respect from the evidence presented at the other trials. The State's evidence tended to show that on January 2, 1977, Charles Castro and his wife reported to police that a body was lying next to a vehicle on the Theodore/Dawes exit ramp from I-10 in Mobile County. Police arrived at the scene and discovered 15-year-old Cheryl Moore lying beside the car and 19-year-old Richard Brune slumped behind the steering wheel. Both victims had been shot and had died as a result of multiple gunshot wounds. The wounds were made with a.38 caliber pistol and a 16-gauge shotgun. Brune had been shot four times with a .38 caliber weapon and Moore had been shot once with a .38 caliber weapon. All of the.38 caliber bullet wounds were inflicted by the same weapon. The toxicologist also testified that wadding recovered from Moore's body during the autopsy matched the 16-gauge shotgun shells recovered from John Daniels's apartment.

The evidence further showed that in 1975, approximately two years before the murders, Tomlin's brother, David Tomlin, had been killed in a shooting involving one of the victims, Ricky Brune. Evidence established that David Tomlin and Ricky Brune were employed at a furniture store as guards. Brune told police after the incident that a shotgun was knocked over and accidentally discharged fatally wounding David Tomlin. Tomlin's father told police that he did not believe that the shooting was an accident and that his family wanted Brune to be charged with murder. Tomlin's father wrote a letter to police that stated that if the police did not act within a certain period he would take "further action."

At the time of the murders Tomlin was living in Houston, Texas, with his wife and two children. Tomlin's wife was employed at a local bar called the Wet and Wild Club. About 10 months before the murders, a Texas Ranger was in the club and met with Tomlin. The ranger testified that Tomlin told him that he had to go to Mobile to take care of some family business; specifically, that he was going to kill the person who had murdered his younger brother. Another Texas Ranger overheard Tomlin's statements.

Tomlin's in-laws, Randy and Danny Shanks, also testified that Tomlin arrived in Mobile unexpectedly on the day before the murders. Randy Shanks testified that Tomlin told them that he had flown from Houston, Texas, to New Orleans, Louisiana, and that he had driven from New Orleans to Mobile. Shanks said that Tomlin told them that he had come to avenge his brother's death — he said he had come to kill Ricky Brune. The Shankses testified that Tomlin was accompanied by John Daniels and that he asked the Shankses to get them a motel room. The Shankses took the two to a local motel where Randy Shanks filled out a registration card. Randy testified that when they got to the room, Tomlin and Daniels showed them a pistol and a sawed-off shotgun. He further testified that Tomlin referred to Daniels as a "hit man."

Other witnesses also testified that Tomlin was seen in Mobile on the day before and the day of the murders.

During the investigation, a Ford vehicle was found abandoned at the New Orleans International Airport. The vehicle was registered to Brenda Watson, Tomlin's sister. Police discovered a parking ticket dated January 2, 1977, at 8:08 p.m. inside the vehicle. An airport employee testified that a flight departed from New Orleans at approximately 8:40 p.m. on January 2, 1977, that was bound for Houston. This employee also testified that although Tomlin's name was not on the flight manifest, at that time a last-minute passenger could purchase a ticket for cash and his/her name would not appear on the manifest.

Mobile County Sheriff Deputy Warren Baker testified that he went to Houston during the investigation. He said that he arrested John Daniels and searched his apartment. Baker testified that he found a large bag with an airline sticker on the bag — the flight number matched the flight number of the flight that had left New Orleans on January 2. Baker also recovered a sawed-off shotgun in the trunk of Daniels's car.

Tomlin testified at his first trial. This testimony was read into evidence at Tomlin's fourth trial. Tomlin testified that he was in Houston at the time of the murders and that the Shankses had lied about his whereabouts because they did not like him.

The jury found Tomlin guilty of the double murder of Brune and Moore as charged in the indictment. On motion of the appellant, the parties stipulated to the jury's recommendation at the third trial — 12-0 for life imprisonment without the possibility of parole. The trial court then held a sentencing hearing. Tomlin introduced numerous witnesses who testified about Tomlin's life since his incarceration. The witnesses included a prison guard on death row, a prison minister, and various friends and family members. Testimony was presented indicating that Tomlin was a model prisoner, that he had adapted well to life on death row, and that he was well liked by his fellow inmates and prison personnel. Tomlin's children also testified about the great impact that Tomlin had on their lives — each said that they spoke to Tomlin weekly. The trial court heard all the testimony and orally sentenced Tomlin to death at the end of the hearing. The trial court issued no formal written sentencing order. This appeal, which is automatic in a case where the death penalty has been imposed, followed. See § 13-11-5, Ala. Code 1975 (superseded; now § 13A-5-55).

On motion of the State, we directed the trial court to enter a written sentencing order that detailed the facts of the crime and the aggravating circumstances and the mitigating circumstances that it deemed were present in the case. The trial court complied with our order and submitted a written sentencing order that complies with the court's statutory obligation.

Standard of Review

Tomlin has been sentenced to death. Pursuant to Rule 45A, Ala.R.App.P., which became effective on December 1, 1978, this Court is obliged to search...

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    ...ground for challenge of suspicion of bias or partiality. See discussion of the common-law grounds for challenge in Tomlin v. State, 909 So. 2d 213 (Ala. Crim. App. 2002), remanded for resentencing, 909 So. 2d 283 (Ala. 2003). Ultimately, the test to be applied is whether the veniremember ca......
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