Tomlin v. State
| Citation | 695 So.2d 157 |
| Decision Date | 21 June 1996 |
| Docket Number | CR-93-0824 |
| Parties | Phillip Wayne TOMLIN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Arthur Madden, Mobile, and Bernard Harcourt, Cambridge, MA, for Appellant.
Jeff Sessions, Atty. Gen., and Tracy Daniel and Andy Poole, Asst. Attys. Gen., for Appellee.
Phillip Wayne Tomlin was convicted of the capital murders of Ricky Brune and Cheryl Moore, made capital because they were accomplished by one act or pursuant to one scheme or course of conduct. See § 13-11-2(a)(10), Code of Alabama 1975 (repealed 1981). 1 At the sentencing phase, the trial court sentenced Tomlin to death by electrocution, overriding the jury's recommendation that Tomlin be sentenced to life imprisonment without parole.
Ricky Brune and Cheryl Moore were found murdered on January 2, 1977. Tomlin and John Ronald Daniels were subsequently arrested for the murders. For his participation in the murders, Daniels was convicted of capital murder pursuant to § 13-11-2(a)(10) (subsequently repealed) (double murder) and § 13-11-2(a)(7) (subsequently repealed) (murder pursuant to a contract or for pecuniary gain), and was sentenced to death by electrocution. 2 For his participation in the murders, Tomlin has been convicted of capital murder in three successive trials and sentenced to death each time he was convicted. This appeal stems from his third trial.
On September 22, 1977, Tomlin was charged with capital murder in an indictment alleging that he committed a double murder when he murdered Brune and Moore during the same course of conduct, and that he committed murder-for-hire because he committed the murders pursuant to a contract or for pecuniary gain. He was found guilty of capital murder as charged in the indictment and was sentenced to death by electrocution. In Tomlin v. State, 443 So.2d 47 (Ala.Cr.App.1979), aff'd, 443 So.2d 59 (Ala.1983), 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984), this court affirmed his conviction and remanded the cause to the trial court to perfect the sentencing order. On return to remand, we reviewed the trial court's corrected sentencing order and affirmed Tomlin's sentence to death. Tomlin v. State, 516 So.2d 790 (Ala.Cr.App.1986), aff'd, 516 So.2d 797 (Ala.1987). However, our judgment was ultimately reversed by the Alabama Supreme Court in Ex parte Tomlin, 540 So.2d 668 (Ala.1988) (), in which the Supreme Court held that the prosecutor engaged in prejudicial misconduct at Tomlin's trial. In compliance with the Supreme Court's holding, we reversed Tomlin's conviction and remanded the cause to the trial court for further proceedings. Tomlin v. State, 540 So.2d 674 (Ala.Cr.App.1989).
On February 24, 1989, Tomlin was reindicted for the killings under the dual theories of murder-for-hire and double murder. He was retried in 1990. During the course of those proceedings, the trial court granted Tomlin's motion for a judgment of acquittal regarding counts two and three of the indictment, which charged Tomlin with murder-for-hire. The case went to the jury on the charge of double murder. On February 1, 1990, after a jury trial, he was convicted of capital murder. At the sentencing phase of the trial, the jury recommended that Tomlin be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced Tomlin to death by electrocution. On appeal, this court held, on several grounds including prosecutorial misconduct, that Tomlin's right to a fair trial had been breached. We, therefore, reversed Tomlin's conviction and remanded the cause to the trial court for further proceedings. Tomlin v. State, 591 So.2d 550 (Ala.Cr.App.1991). The Alabama Supreme Court denied certiorari on January 10, 1992.
On May 28, 1993, Tomlin was reindicted for the murders under two indictments, one Because we reverse the trial court's judgment, we do not address all of the issues raised on appeal. In addition to the issue requiring reversal, we also address each issue, which, if meritorious, would bar Tomlin's further prosecution for this offense.
charging both murder-for-hire and double murder and the other charging only double murder. The trial court granted Tomlin's motion to dismiss the indictment charging both murder-for-hire and double murder. 3 On November 11, 1993, Tomlin was convicted of capital murder as charged in the remaining indictment, i.e., double murder. Upon a motion made by Tomlin, the trial court accepted, as the advisory verdict in this third trial, the advisory verdict of life imprisonment without parole returned by the jury at the second trial. 4 In the sentencing phase, the trial court again overrode that advisory verdict and sentenced Tomlin to death by electrocution. This appeal follows
On January 2, 1977, at about 5:30 p.m., Brune and Moore were found dead in Brune's automobile, which was found on the side of the exit ramp from Interstate 10 outside Mobile, Alabama. Brune had been shot with a .38 caliber weapon, and Moore had been shot with a .38 caliber weapon and a 16-gauge shotgun.
The events leading to these deaths began on November 25, 1975. Brune and Tomlin's brother, who were friends, were tussling in a bedroom of the Tomlin family's furniture store when a shotgun slid down the wall; both boys grabbed for it. Apparently Tomlin's brother touched the trigger, shooting himself in the stomach. The shooting was determined to be accidental. Tomlin's father subsequently asked the police to arrest Brune for the murder of his son. He unsuccessfully pursued the matter with the district attorney. Finally, in a letter dated January 12, 1976, addressed to several persons including the district attorney, he explained his version of the events leading to his son's death and concluded, "Unless some positive action is taken by you within five days, I shall take further action."
On March 19, 1976, while sitting in a bar in Houston, Texas, Tomlin, the appellant, told another patron at the bar, who turned out to be an undercover police officer, that he intended to avenge his brother's death. This conversation was overheard by another undercover officer.
About 11:30 p.m. on January 1, 1977, Tomlin arrived unexpectedly at the trailer of his brothers-in-law, Randy and Danny Shanks in the Mobile area. Tomlin had flown from Houston to New Orleans and had driven a car from New Orleans to Mobile. He stated that he had come to kill Brune, and he asked the Shankses to rent a motel room for him and his companion, Ronald Daniels. In the motel room, the Shankses were shown a couple of pistols and a shotgun or a small rifle. Danny Shanks said that the guns were possibly a .38 revolver, a .44 revolver, and a sawed-off shotgun. Tomlin drove the Shankses back to their trailer in a car owned by Tomlin's sister. Danny Shanks said that during the drive, Tomlin remarked that Daniels was a hit man.
The next day, Danny Shanks went to the motel and awakened Tomlin. About 12:30 p.m. Tomlin drove Shanks back to his trailer. Shanks said that they stopped and put air in the left front tire of the car on the way. Between 3:00 p.m. and 4:00 p.m., James Stokes, a friend and former neighbor of Tomlin's, talked to him in his car outside the Highway 90 Lounge. Stokes saw another person with Tomlin in the front seat of the car.
Around 5:30 p.m. that day, Charles Castro and his wife were traveling east on Interstate 10 in Mobile when they saw a car parked on the Theodore-Dawes Road exit ramp; a body was hanging out the passenger door. They found a law enforcement officer who accompanied them back to the scene, where they discovered the bodies of Brune and Moore. James Small, a state toxicologist, was called to the scene. He examined the bodies and found a large gaping wound in Moore's back and a readily observable wound on her left arm. Brune had a wound to the right side of his head and wounds to the neck and right arm, which were readily observable. Small also found powder burns under the headrest and under the front seat, which indicated a weapon had been fired from the back seat. At the hospital during the autopsy, he saw the physician remove a .38 caliber bullet and 16-gauge plastic wadding from a shotgun shell from Moore's back. Four .38 caliber bullets were removed from Brune's body. The bullets removed from Moore and Brune had been fired from the same gun. Two 16-gauge shotgun shells were subsequently found in a suitcase during a search of Daniels's apartment in Houston.
On January 29, 1977, a 1968 4-door, light green Ford automobile with black vinyl roof was found in the long-term parking lot at the New Orleans airport. The car had been damaged and the left front tire was almost flat. A parking lot ticket found on the right front floor of the interior showed a time and date of 8:08 p.m., January 2, 1977. The car was registered to Tomlin's sister, Brenda Watson. The car was checked for fingerprints, but none could be traced to Tomlin. Eastern Airlines flight 569 had departed New Orleans for Houston at 9:00 p.m. on January 2, 1977. Although Tomlin's and Daniels's names were not on the flight manifest, it was possible to purchase tickets with cash at the gate and in that event no identification was required. A baggage tag from flight 569 was found on a suitcase during a search of Daniels's apartment in Houston.
Tomlin's summary of the events of January 1 and 2, 1977, are entirely different. He stated that he was not in the Mobile area. He stated that he went to a New Year's Eve party with his wife at a friend's house in Houston and that after the party, they accompanied Daniels and his wife to the Daniels's home for breakfast. Tomlin said that later that day, he went home to feed...
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