Wicker v. State

• Decision Date: 05 July 1983
• Docket Number: 8 Div. 786.
• Citation: 433 So.2d 1190
• Parties: Mary Jewel WICKER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

433 So.2d 1190

Mary Jewel WICKER v. STATE of Alabama.

8 Div. 786.

Court of Criminal Appeals of Alabama.

May 31, 1983.

Rehearing Denied July 5, 1983.

Norman Roby, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Mary Jewel Wicker was indicted for the murder of her husband, Troy Wicker, Jr., in violation of § 13A-6-2(a)(1), Code of Alabama 1975. The jury found the appellant "guilty as charged" in the indictment and the trial judge set sentence at life imprisonment in the penitentiary.

A hearing on the State's motion for continuance was held and Danny Kimbrough, an employee of the District Attorney's office, testified.

He stated that one of the State's witnesses, Patricia Yarbrough, testified at the Grand Jury proceedings and had appeared at all other court proceedings until the case was set for trial. The case was scheduled to begin on September 28, 1982, and Yarbrough was served with a subpoena. She never gave any indication that she would not be at the trial. Kimbrough talked to her on Monday, the first day of the trial and told her she would not be needed that day, and he would get back to her on Tuesday.

Later that day, Kimbrough received information that Yarbrough did not intend to appear at trial. He attempted to locate her but had been unsuccessful.

Kimbrough then told the court what the State expected her testimony to be. Yarbrough became friends with one Tommy Arthur while she was working at Sherr's Lounge in Huntsville, Alabama. On January 31, 1982, the day before the victim was murdered, Arthur asked her to buy a particular brand type of .22 rifle cartridges and gave her a $10 bill. Yarbrough secured another party to purchase the cartridges which she then gave to Arthur. At this time, Arthur told her he needed them for a killing.

Kimbrough then stated that the bullets Arthur received were the same kind as those found in the victim's body. He stated Yarbrough was an essential witness for the State. Every effort had been made to locate this witness including the issuance of an attachment for her.

Defense counsel agreed to a short continuance which the trial court granted and the trial began the following Monday, October 4, 1982.

The first witness for the State was Eddie Lang of the Muscle Shoals Police Department. On Monday, February 1, 1982, at 7:45 a.m., Lang was directing traffic at the school crossing in front of the Avalon Middle School, when he noticed the appellant come through the crossing in a red Buick Riviera and wearing a blue housecoat. She then came back through the crossing ten minutes later. Both times she was by herself. He also noticed that Malon Boatright and Captain Robert Hall were behind the appellant the second time she went through the crossing.

At 8:00 a.m., he went on routine patrol and was called to 301 Highland Avenue at 9:12 a.m. He, Officer Lanny Coan and State Trooper Charlie Owens arrived at the house at the same time. When Lang entered the house, he saw the appellant lying on the floor and her sister, Theresa Rowland, was kneeling beside her. The appellant was crying and bleeding from her face. She had on the same blue housecoat she had worn earlier that morning. Lang stated he noticed a vase was broken and the house was somewhat messed up.

In one of the bedrooms, Lang found the deceased lying on the bed. He had been shot in the right eye. Beside the deceased, Lang found four small caliber pistol shells.

The scene was secured, the detectives were called and the officers checked but found no sign of forced entry. The appellant was then transported to the hospital.

Lanny Coan of the Muscle Shoals Police Department testified to basically the same facts as Lang. He asked the appellant if she knew who did it and she stated she did. She then asked where her husband was. Coan asked if he did this and she said no. She then said she had been raped and "a big black nigger did it." (R. 112).

Joseph Wallace, an employee of the Department of Forensic Sciences, stated he went to the Northwest Alabama State Junior College in Tuscumbia on February 1, 1982, around 12:15 p.m. In the parking lot, he saw a maroon Buick Riviera. Inside the automobile, he found a black wig, three wads of hair, a purse and a billfold.

Wallace also went to the appellant's house on that day. He stated the house was messy and everything was in general disorder. He processed the house for fingerprints and gathered certain items for evidence, including the broken vase, the four .22 caliber spent hulls and the bloodstained pillowcase.

Dr. Daniel Parks McKinley testified he treated the appellant at the emergency room of Helen Keller Memorial Hospital on February 1, 1982. The appellant had a bruise around her left eye, a laceration of her left upper lip, two chipped teeth and an abrasion on her left hip. She was hospitalized for a week but was given a pass to attend her husband's funeral. McKinley stated there was no physical necessity to keep the appellant in the hospital but she felt she needed to stay.

Brent Wheeler of the Department of Forensic Sciences testified he received four CCI .22 caliber cartridge cases, a .22 bullet removed from the body of the victim and a bloody pillowcase. From the presence of powder flakes on the pillowcase, Wheeler concluded the victim had been shot at close range. Wheeler examined the bullet and determined it was consistent with a .22 caliber CCI mini-mag, the same type as the four spent hulls.

Josephino Aguilar, a forensic pathologist with the Department of Forensic Sciences performed the autopsy on the deceased. He concluded the cause of death was a solitary gunshot wound to the right eye fired 16" to 24" directly above the deceased. Dr. Aguilar also observed gunpowder tatooing around the eye area and unburnt gunpowder on the neck and chest. The unburnt powder on the neck and chest area was not caused by the same shot which hit the deceased in the eye.

John Kilburn of the Department of Forensic Sciences examined the three hair samples and the wig found inside the appellant's car. He testified the hair samples were Negroid and had been forcibly removed. He did not find any Negroid hair in the wig.

Joel Reagan testified that he owns Joel Reagan Homes in Decatur. He met Tommy Arthur in the mobile home business and had known him eleven or twelve years. Reagan stated Arthur had pled guilty to the murder of his sister-in-law in Marion and went to prison. Arthur came to work at his business on the work release program in November, 1981. Sometimes Arthur would come to work after he had been drinking and did not work every day eight hours a day.

In February, 1982, Reagan received an outrageous phone bill. Arthur admitted making over fifty long distance calls in January to the appellant's house and the last call was made on January 30, 1982. Reagan also said he had seen the appellant with Arthur several times at his place of business.

Deborah Tines testified she is the manager of Sherr's Lounge in Huntsville. She met Arthur in December, 1981. Arthur came to the lounge once or twice a week and they became friends.

One day Arthur asked her what she did for protection, and she said she carried two guns. Then Arthur asked if she ever heard of any guns for sale.

On February 1, 1982, Deborah Tines had a luncheon date with Arthur and he arrived at 11:30 a.m. They drove on I-65 to the river bridge. Arthur stopped on the bridge, got out and threw a package over the bridge and they returned to Huntsville and had lunch. Tines said Patricia Yarbrough had worked at the lounge as a waitress.

Terry Lewis stated Patricia Yarbrough asked him to purchase some ammunition for her. She gave him $10 and he went to Woolco and purchased some CCI .22 long mini-magnum bullets. The date on the receipt was January 31, 1982.

Both parties stipulated to the following statement as the testimony of Patricia Yarbrough: (R. 265-266).

"I met Tommy Arthur in November of 1982 (sic) at Cher's (sic) Lounge in Huntsville. Tommy was in and out of the lounge all the time. Tommy told me that he was a friend of Gene Moon's. I used to date Gene a while back. Tommy and I became friends. On Sunday, January 31 Tommy came in the lounge about 2:00 p.m. Tommy was in a hurry and told me that he needed some bullets and they had to come from Woolco. He wrote down the kind that he wanted, .22 cal. long mini-mags. I got Terry Lewis to go to Woolco to get the bullets because I didn't want to sign for them. After I gave him the bullets which he paid for he left."

Patrick Halliday testified he is the assistant director of the work release center in Decatur. The daily log book shows that Arthur claimed he worked almost every day of the month for eight hours a day. An investigation of Arthur ensued because the hours reflected in his paycheck were not consistent with the hours Arthur was giving in the log book. On March 17, 1982, officials made a search of Arthur's personal items and discovered twenty-one $100 bills inside an envelope contained in Arthur's coat pocket.

The daily sign-in book showed that Arthur left the work release center at 6:00 a.m. on February 1, 1982, and returned at 7:50 p.m. On January 31, 1982, Arthur was away from the center from 9:30 a.m. until 6:55 p.m.

Captain Robert Hall testified he is chief of detectives of the Muscle Shoals Police Department. He talked to the appellant on Friday, after Troy Wicker was killed and she was not a suspect at this time.

The appellant stated that on February 1, 1982, she left her house to take her children to school. On the way, she bought gas and then dropped the children at school. She decided to go see her sister but changed her mind and went home. She said she was driving a maroon Buick Riviera and had on slacks, blouse and a short tan jacket.

When she walked into her house, it was a mess. The appellant claimed she saw a black male who hit her and after that she could not...