Tomlin v. State

Decision Date26 July 1991
Docket NumberCR-89-616
Citation591 So.2d 550
PartiesPhillip Wayne TOMLIN v. STATE.
CourtAlabama Court of Criminal Appeals

W. Gregory Hughes, Mobile, for appellant.

James H. Evans, Atty. Gen., and Sandra Stewart and Beth Poe, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Phillip Wayne Tomlin, was originally tried in 1978 for the murders of Ricky Brune and Cheryl Moore. These murders were made capital because a double murder was committed. 1 This court affirmed the appellant's conviction in 1979 but remanded the case to the trial court for correction of its sentencing order. See Tomlin v. State, 443 So.2d 47 (Ala.Cr.App.1979). This court's judgment was later affirmed by the Alabama Supreme Court in Ex parte Tomlin, 443 So.2d 59 (Ala.1983). The United States Supreme Court denied the appellant's request for certiorari in 1984. After the trial court submitted an amended sentencing order, the Alabama Supreme Court affirmed the appellant's conviction in Ex parte Tomlin, 516 So.2d 797 (Ala.1987). On the appellant's second request for rehearing, the Alabama Supreme Court reversed his conviction for improper comments made in the prosecutor's closing argument. Ex parte Tomlin, 540 So.2d 668 (Ala.1988). The instant appeal results from the appellant's subsequent trial, which occurred in 1990. In that trial, the jury found the appellant guilty of the murders of Ricky Brune and Cheryl Moore and recommended a sentence of life without the possibility of parole. The trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution.

Because we must reverse this case on several grounds, we will include only a brief recitation of the evidence presented at trial. The evidence tended to show that on January 1, 1977, the bodies of Ricky Brune and Cheryl Moore were discovered in an automobile on the side of interstate highway (I-65) at the Theodore-Dawes exit ramp near Mobile, Alabama. Both had been shot. Ricky Brune, a 19-year-old, had been shot once in the head above the eye and once in the neck; two shots had passed through his left arm and had entered his chest. He died as a result of trauma and hemorrhage to the body. Cheryl Moore, a 15-year-old, was shot twice. One shot entered her arm and went through to her chest. The second shot, from a shotgun, entered her back. Her cause of death was gunshot wounds to the body. Evidence established that all of the shots, except the shotgun wound on Cheryl, were from a .38 caliber gun.

Testimony established that the appellant's brother had been shot and killed in an incident involving Ricky Brune. At the time of the murders, the appellant was a resident of Houston, Texas. David Hammonds, an investigator with the Texas Department of Public Safety, stated that he was in a club in Houston, Texas, in 1976 working undercover as a narcotics officer. The appellant was present in the club at this time. Hammonds testified at trial that the appellant told him that his brother had been killed in a narcotics transaction which had gone bad, and that he was going to Mobile to take care of some family business and to kill the person who had killed his brother.

Randy and Danny Shanks testified that the appellant arrived in Mobile on January 1, 1977, and came to their trailer, which was located in Tillman's Corner, outside of Mobile. The appellant was married to the Shankses' sister. The Shankses testified that the appellant was not alone when he arrived in Mobile, but that he was accompanied by an individual whom the appellant identified to them as Ron. 2 Randy Shanks testified that the appellant told him and Danny that the appellant had come to Mobile to kill Ricky Brune. The appellant wanted to borrow Danny Shanks's car the next day, so that he could leave town. Danny would not let him use his car and said that he did not want to get involved in anything. Danny and Randy rode with the appellant and Ron to a motel in Mobile where they were staying. The appellant and Ron showed the Shankses two guns--a .38 caliber and a .44 caliber. Danny also heard the appellant say something about Ron's being a "hit man." The Shankses testimony was not the only testimony that the appellant was in the Mobile area at the time of the murders. Other testimony at the appellant's trial confirmed that he was seen at a local club in Tillman's Corner at around the time of the murders. Although we reverse the judgment and remand this case, we will address issues which may arise in any subsequent proceedings.

I

Initially, the appellant contends that the trial court erred in denying his motion for mistrial because, he argues, evidence was presented that the appellant's codefendant had been convicted of capital murder and, at the time of the trial, was on death row. The appellant maintains that this evidence violated his due process rights and that he was thereby denied a fair trial. For the following reasons, we agree.

The appellant's counsel made a motion in limine requesting that all evidence of the codefendant's conviction and sentence be withheld from the appellant's trial. When evidence of the codefendant's conviction was presented at trial, the appellant's counsel moved for a mistrial. Thus, we believe that this issue was adequately preserved for our consideration. However, even if no objection was made at trial, review in a case involving the death penalty will not be barred, because the appellate courts of this state review every conviction in such a case for plain error. See 45A, A.R.App.P. Even if no objection had been made to evidence of the codefendant's conviction, we would find plain error. See United States v. Avery, 760 F.2d 1219 (11th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 792, 88 L.Ed.2d 770 (1986).

The following occurred during the testimony of Detective Estes, with the Mobile County Sheriff's Department:

"Q--[by Mr. Valeska] Based on your investigation of this case, is there any way physically possible in this world that Phillip Wayne Tomlin or John Ronald Daniels could [have] been at the lounge on Highway 90 in Tillman's Corner on January 2nd, 1978?

"A--No, sir.

"Q--Why not?

"A--They were in jail.

"Q--Charged with what?

"A--With murder.

"Q--Where is John Ronald Daniels today?

"Mr. Madden [Defense Counsel]: Judge, I'm going to object. That's irrelevant.

"The Court: I don't know where he's going. I overrule the objection.

"Q--[By Mr. Valeska]: Where is John Ronald Daniels today?

"A--He's in the penitentiary in Alabama.

"Q--Is he on death row?

"A--He is.

"Mr. Madden: Judge, I object. Move for a mistrial. That's improper and he knows [it]. It has nothing to do with the facts of this case.

"The Court: Go ahead.

"Mr. Madden: You're denying that motion, Judge?

"The Court: Not yet.

"Q--[By Mr. Valeska]: Mr. Estes, from the time y'all-- "The Court: Ladies and gentlemen of the jury, we're not trying John Ronald Daniels in this case. Go ahead."

The state argues in brief that the prosecutor elicited this testimony in order to correct the testimony of a witness who stated that he had seen the appellant in Mobile in 1978. 3 However, the prosecutor's question "Is he on death row?" went beyond what it was necessary to correct the witness's testimony. "We feel that a foul blow has been struck here, one which has affected the substantial rights of the defendant and requires a new trial free of such prejudicial comments." United States v. Miranda, 593 F.2d 590, 593 (5th Cir.1979).

In 1899, the United States Supreme Court held that evidence of a codefendant's conviction was not admissible in the trial of his fellow accused. See Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). This is still the prevailing view. See Annot., 48 A.L.R.2d 1016, and cases cited therein.

"Where two or more persons are jointly indicted for the same criminal offense which is in its nature several, or are separately indicted for such offense or for separate offenses growing out of the same circumstances, and are tried separately, the fact that one defendant has pleaded guilty or has been convicted is, as a general rule, inadmissible as against the other, since competent and satisfactory evidence against one person charged with an offense is not necessarily so against another person charged with the same offense, and since each person charged with the commission of an offense must be tried upon evidence legally tending to show his guilt or innocence."

48 A.L.R.2d at 1017. There are exceptions. "Where the common-law distinction between a principal and an abettor has not been abolished, the conviction or plea of guilty of a principal is admissible against one being tried separately as an abettor, since the principal's guilt is a prerequisite to prove the guilt of the accused." 48 A.L.R.2d at 1017, n. 1. Furthermore, evidence of a codefendant's conviction may be admissible for purposes of impeachment when the codefendant testifies at trial. However, the court should give the jury a limiting or cautionary instruction concerning the use of the conviction. See United States v. Austin, 786 F.2d 986 (10th Cir.1986). See also Stokes v. State, 462 So.2d 964 (Ala.Cr.App.1984). Neither of these exceptions apply in the instant case. (We note that the codefendant did not testify at appellant's trial.)

Alabama follows the majority view. 4 Judge Bowen in Stokes, supra, thoroughly reviewed the Alabama cases in which evidence of a codefendant's conviction was admitted. Judge Bowen stated:

"A survey of the Alabama cases on this point reveals that disclosure of the outcome of a co-defendant's case has been denounced whether it occurred in argument, see Knowles v. State, 44 Ala.App. 163, 204 So.2d 506 (1967) (Prosecutor's statement that other defendants had already pled guilty). Bell v. State, 41 Ala.App. 561, 140 So.2d 295 (1962) (Prosecutor's statement that co-defendant...

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