Appendix — Tomlin v. Alabama

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“Supreme Court, US.

FILED

MAR 80 1984

ALEXANDER CL STEVAS.

CLERK

NO. 83-1533

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1983

‘ ” 1

ö — 4 - 7 ‘ a) Ba) 0

nee * . 8 n° 1

r , „

PHILLIP WAYNE TOMLIN,

PETITIONER

vs.

STATE OF ALABAMA,

— 71

RESPONDENT

, 7 7) “ee e ~

* 3 . OTE Sa ,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

APPENDICIES TO THE

BRIEF AND ARGUMENT IN OPPOSITION

TO THE WRIT

CHARLES A. GRADDICK

ATTORNEY GENERAL

JOSEPH d. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

250 84 1. Union Stree a ae

3 Bo. <

TABLE OF APPENDICIES

APPENDIX "A", OPINION IN

Tomlin v. State, So.

pp- Ala.,

Nov. 20, P

APPENDIX. "8B", 2 IN

" cb a.,

APPENDIX "C", OPINION IN

Ex Parte:

Tomlin; Re:

CERTIFICATE OF SERVICE... .cseccssccses

PAGE

APPENDIX "A"

NOV 20, 1979 §

THE STATE OF ALABAMA -—

§ JUDICIAL DEPARTMENT 5

a THE ALABAMA COURT OF CRIMINAL APPEALS :

OCTOBER TERM, 1979-80

1 Div. 23

Phillip Wayne Tomlin

State

Appeal from Mobile Circuit Court

BOOKOUT, JUDGE

Murder in the first degree wherein

two or more human beings are intention- ‘8

ally killed, and murder in the firet ip

. * degree when the killing vas done for a.

* —.— eee for e,

The State's evidence was sufficient

to justify appellant's conviction even

though there was no eyewitness testimony

concerning the double killings. It is

therefore unnecessary for the purposes of

this appeal to narrate a detailed account

of the brutal and calculated murders

contained in the voluminous record before

us. Briefly, the facts are as follows:

At approximately 5:30 p.m. on

January 2, 1977, at the Theodore-Daves

Exit to Interstate 10 in Mobile,

nineteen-year-old Ricky Brune and

fifteen-year-old Cheryl Moore were found

dead in the front seat of Brune's car.

(Their deaths resulted from multiple |

gunshot wounds in the back from a

sixteen-gauge ee and 9 de eber,

unoccupied 1368 Ford had been spotted

parked at the exit with the motor running

at 4:50 p.m.

The appellant and his "partyer,"

John Ronald Daniels, had arrived in

Mobile at Randy and Danny Shanks' trailer

the night before between 11:30 and 12:00

p-m. after travelling from Houston,

Texas. The Shanks were the appellant's

brothers-in-law. The appellant

_introduced Daniels as his "hit man" and

told the Shanks he had come to Mobile to

: get revenge ... on the guy that, killed |

5 his brother .. [that] he was going o

*. 9 or say Sa — ‘ N

5 7 *

. ES tay * kw a me

. 8

5s Saltese ited

7 N 8 : N

1 n mrs”

Inn for appellant and Daniels. Inside

the motel room the appellant and Daniels

as.

showed the Shanks the .38 and .44 caliber

. we

pistols and a disassembled sixteen-gauge

shotgun. The weapons were kept in a

satchel. Later, the appellant drove the-

Shanks back to their trailer and asked J

Danny if he could use his car "the next

“ia day to get out of town." Danny told hin

no, that he didn't want to get involved

in it." The appellant was driving his

sister's 1968 Ford.

The appellant and his "hit nan“

Daniels were last seen in Mobile between

3:00 and 4:00 p · n · the afternoon of the

murders at the Highway 90 Lounge. located |

two miles north of the Theordore-Daves

Exit. Outside the lounge Wine his

sister's car, the appellant hed 5 *

conversations with the Shanks brothers ¥

572

1 4

aad

and James Stokes. The appellant was next

seen in Houston, Texas, later that night.

His sister's 1968 ford was found

abandoned at the New Orleans

International Airport.

The appellant contends that Counts 1

and 3 of the indictment were defective

and that his demurrer to those counts

should have been granted. We do not

agree. Omitting the formal parts, the

indictment charges that the appellant,

Phillip Wayne Tomlin: N

„. „ did unlawfully,

intentionally, and with malice

„ Sree tae

„ 1977, ata location

on or ‘near 33 10 — 4 ne

8 ile.

and Cheryl Moore shooting

Richard Brune and Cheryl Moore

with a gun, said killings were

done for a pecuniary or other

valuable consideration, or

pursuant to a contract or for

hire, in violation of Act

Number 213, Section 2,

Sub-Section d (Act #213,

§2(g@)), Actes of Alabama,

Regular Session, 1975, against ;

the peace and dignity of the 1

State of Alabama. 1

155 . .. did unlawfully, s

. intentionally, and with malice 5

f afore thought kill Richard Brune 5

and Cheryl Moore, by shooting 2

them with a gun, wherein both 1

Richard Brune and Cheryl Moore

were intentionally killed by 5

PHILLIP WAYNE TOMLIN by one or 1

a series of acts, in violation : :

N of Act Number 213, Section 2,

4 Sub-Section J (Act #213, 920000

8 and Act Number 213, 25

. Sub-Section H (Act #213

(n)), Acte of Alabama, ge

- Session, 1975, in that said

% killings were especially

Ba: ’ heinous, atrocious or

* : cruel...."

‘Appellant pled not guilty to the :

charges at his arraignment on oo tober 13, a

eee e er

ieee *

, 4 * ;

é 1 4

| ba

* 5 v

4 5

Appellant did not file hie demurrer to

the indictment until March 20, 1978,

after the jury had been empaneled. We

hold that appellant's indictment wae not 4

subject to demurrer, and in any event the

delay in filing constituted a waiver.

Recently we affirmed long Standing 4

principles recognized by this court and :

the Alabama Supreme Court by holding the |

following:

"Generally, a demurrer is the

proper procedure to raise

defects in an indictment.

Andr v. State, 544 80. 2d 533

Nr Ter t. denſed, 344

80. 2d 538 (Ala. 1977). Since a

plea to the merits admits the 93

validity of an indictment, a 7

demurrer filed after arraign- 3

r N 1 2

U —

ewe

and subject to demurrer, the

failure to demur will prevent

appellate review of the

Indictment's short comings.

zillions d State, 333 80. 2d

p „ affirmed,

333 So. 24 613 Ala. 1976)."

Tom Edwards v. State,

5 . (Ala.Cr.App. 1979).

Of course if an indictment is void

as opposed to voidable, as where the

indictment does not on its face charge an

offense, or where the accused is left

unware of the nature and cause of the

charge against him, thie court is bound

to take notice of such defect even in the

absence of an objection. Edwards, supra;

Davidson v. State, 351 80. 2d 683 (Ala.

or. App- 1977); Fitsgerald v. State, 53

Ala.App. 663, 303 80. 2d 162 (1974). IT

the indictment had been void rather than

voldable, the defect would have been

reached by the A request hg an

affirmative charge. “Bavards, oupra;

> ae .

* *

. 19 4 4 .,

ae eee er ON n

8 f J

Coker v. State, 18 Ala-.App. 550, 93 So.

384 (1922). The defect could have been

preserved by a motion in arrest of

judgment. Francois v. State, 20 Ala. 83

(1852).

In the instant case, however, each

count of the indictment stated an offense

In such a manner as to apprise appellant

of the nature of the charges against hin.

** We hold, therefore, that the indictment

was not void on ite face and that the

trial court was correct in overruling the a

untimely demurrer.

Even had the demurrer been timely

filed, we hold that the faulty grammar in

Count 1 was not objectionable.

"Before an objection because of i 4

rammar, incorrect *.

mere N

a eS a r

N reading, not for the pur pose of

_ finding defects, but to

* ascertain what is intended to

be charged. Grant v. te, 55 |

Ala. 201 (1876). Werthes "

clerical nor grammatical errors '

vitiate an indictment unless

they change the words or

obscure the meaning, Grant, :

supra, or unless the error 1

changew a word into one of ;

different import or the sense N

1 ie so obscure that one of 9

ordinary intelligence cannot

determine with certainty the “4

meaning from the context.

4 8 v. 8 2 Ala. App.

* * * „ 113...

5 Cook v. 8 * 369 So. 2d 1243 1

. —— * . App. 1977). =a

1 part, reversed in part on 5

* other grounds, 369 So. 2d 1251 | a

2 (Ala. 978). 1

; The sense of Count 1 in the indictment is

clear. The grammatical error did not

obecure the sense of what was intended to

be charged. ‘

Contrary to appellant's argument —

gens Sees bind sie I

Lore than the fir

Ala. 1975, ie sufficiently followed to

charge a capital offense. The Alabama

Supreme Court has specifically held that

the capital offense expressed in § 13-11-

2(a)(10) is murder aggravated by two or

more individuals being killed. Ex parte

Clements, 370 So. 24 723, 726 (Ala.

1979). Tt ie thus distinguishable from

traditional noncapital first degree

murder.

It was proper that each count allege

that the killings were done “unlawfully,

intentionally, and with malice Aas

aforethought," elements of the first

1 murder statute, rather char solely

dene intentional1y. Beotion 13-11-2(a)

“Gay ‘Peqni ree proog.cf (1) ur 1 $e

nnen eee ee

: * —

an intentional killing must be alleged

and proved under the instant statute.

Count 3 of the indictment was

3 likewise not subject to demurrer for

4 concluding that "said killings were

| especially heinous, atroclouis or cruel"

— language found in § 13-11-6(8). That

language was mere surplusage to the first

part of Count 3 which properly charged a

capital offense under § 13-11-2(a)(10).

As early cases have held, unnecessary

4 avermente in an indictment do not impair

ite validity. The most that can result 4

from them is to hold the prosecution to

the proof of them. Aaron v. State, 39

Ala. 75 (1863). Johnson v. State, 35 >

Ala. 365 (1860); Lindsay v. State, 19

_ Ala. 560 (1851). Surplusage does not 8

. eee indiotaent otherviee good.

So. 788, cert. denied, 212 Ala. 415, 102

So. 791 (1924). As long as the remaining

portions of an indictment valldly charge

a crime, the existence of surplusage will

not affect the validity of a conviction.

United States v. Hyde, 448 P. 2 815 (5th

Cir.), cert. denied, 404 U.S. 1058, 92

S.Ct. 736, 30 L. 3d. 2 745 (1971).

II.

Appellant contends that the trial

court erred in failing to exclude the

State's evidence relating to Count 2 of

the indictment. Appellant correctly

- maintains that the State presented no

evidence that the appelient hineelf

¢ count $tea the killings for pecuniary gain

or perenent toa rocugract or for hire. 9

Count 2 of the indictment should have

been granted.

In addition, the trial court at the

sentence hearing specifically found that

the killings were not commit’ i for.

pecuniary gain and also that the

appellant was not an accomplice, but was

an actual participant in the murders. It

is argued that the trial court's

determination after the sentence hearing

that the killings were not committed for

pecuniary gain is in direct conflict with

his denial to exclude the State's |

evidence as to Count 2 of the indictment

at the trial. (The above two contentions, © *

while logical and percuasive, must fail.

We shall address appellant's arguments

separately.

"partner", was a n hit man." Appellant

had come to Mobile to get “revenge” for

the death of his brother. The inference

is clear that appellant's "partner"

Daniels was to commit the killings

pursuant to a contract or for hire. This

evidence decidely falls within the

parameter of a murder done for pecuniary

5 gain or pursuant to a contract or for

. hire as defined in § 13-11-2(7), Code of

Ala. 1975.

It does not matter that the

appellant himself did not commit the

murders. A jury question was presented

as to whether appellant was Daniele’

accomplice. The jury was correctly | f

charged on the law regarding accomplice |

| participation in a crime. .

& vader the accomplice statute, ' 7

iad

1-1, Code of Ala. 1975:

"The distinction between an

accessory before the fact and a

principal, between principals

in the first and second degree,

in cases of felony, is

abolished; and all persons

concerned in the commission of

Tes whether ¢ direct

commit 5 act 888 1 a

offense or ald or abet in its

commission nh not present,

must hereafter be ad Tee

tried and Tshed as

rinc , as in case of

misdemeanors." (Emphasis

added. )

The applicability of the accomplice

statute to the death Salt statute has

been discussed in Colley v. State,

So. 24 (Ala. Cr. App. 1979); in a

special concurrence in Ritter v. State,

ie La (Ala. Cr. App. 1978);

and by the Alabama Supreme Court in

Ritter v. State, So. 24 (Ale.

1979). A general verdict of "guilty of

under Count 2 of the indictment. We

nal

murder as charged in the indictment" was

returned by the jury. Conceivably the

jury could have found appellant guilty

* 5

—

that the accomplice statute is applicable 3

to sustain the verdict in the instant

case.

The circumstantial evidence was

ample for the jury to have found that the

appellant was an active participant in #

tee! Died od

the murders and that he was present at

2 the scene of the murders with a view to 155

ae render aid to Daniels as it became .

4 necessary. Where the evidence presented

Ke raises questions of fact for the jury and ¥

3 such evidence, if believed, is sufficient

to sustain a conviction, the denial of a 14

* motion to exclude the State's evidence 4

does not constitute error. Young v.

State, 283 Ala. 676, 220 So. 2d 843

(1969). Thus by way of the accomplice

statute, Count 2 of the indictment was

properly allowed to remain before the

jury for their consideration. We do not

1 „

. ss i *

2 N

—

“i

z * a;

« a

* *

3 %

* ~~ 7 2 7

* ~~

r 7 — *

—

say that the jury found the appellant

guilty under Count 2, only that they a

properly had the option of so finding.

As to the second part of appellant's

argument, we hold that the trial court

could properly have found at the sentence

hearing in considering the aggravating

and mitigating circumstances that the

killings were not committed for pecuniary

gain and that the appellant was not an

accomplice to the murders. Sections 4

13-11-6(6) and 15-11-7(4), Code of M.

1975. This is so despite the fact that 4 :

the trial court had previously given the

jury the option of deciding these same

questions of fact by properly allowing,

as we have determined, Count 2 to remain

before the jury for their consideration.

This seemingly anomalous result is |

es, = 2 ~ * 2 *r a =<. 7 „

peculiar to the death penalty statute and

is explained as follows. .

A basic legislative concern

underlying our death penalty statute is

that the sentence hearing be kept

separate and apart from the trial itself

3 and from any jury input as to the

ultimate sentence to be imposed which is

either death or life without parole.

Section 13-11-3, Code of Ala. 1975. The

sentence hearing is conducted by the

F trial court sitting alone and only upon a

prior jury determination at the trial

that the accused is guilty of a capital

e offense. Such a prior determination of :

guilt by the jury carries an automatic ; i

: death sentence; the jury input stops at <a

g that point. Boiled down to its essence,

the sentence hearing is designed in

theory to benefit the accused by allowing

the trial court to reduce his sentence

* * 5 7 . Ae x

a ane | wee. eee

eee oe ee ee ee Se OP es eee

from death to life without parole when

the mitigating circumstances so require.

The trial court in effect is allowed to

act as a sentence reducer if it finds

sufficient mitigating circumstances or

lack of aggravating circumstances.

Sections 13-11-3 and 13-11-4.

The sentence hearing is further

differentiated from the trial by what

evidence is allowed to be presented.

„.. In the hearing, evidence

m de presented as to

Ah that the court deems

relevant to sentence and shall

Include any matters relating to

any of the aggravating or

mitigating circumstances

enumerated in sections 13-11-6

and 13-11-7. ny such ev dence

whieh the cour

ine u under the

exclusionary rules of evidence,

provided that the defendant is

accorded a fair opportunity to

rebut any hearsay statements; 2

provided further, that this 9

section shall not be construed 1

to authorize the introduction

of any evidence secured in

violation of the Constitution

- —— — *

« Ma

„

mitigating circumstances which are

of the United States or the

thaphinie aleed.) . Géckien

13-11-3, Code of Ala. 1975.

By definition the trial court is to have

latitude and discretion as to what

matters may be presented and considered

at the hearing. Specifically the trial

court is not limited by the exclusionary

rules of evidence it is required to

adhere to during the actual trial. in

short the trial court at the sentence

hearing is allowed substantive and

procedural flexibility which is generally

prohibited during the jury trial.

Thus it is a natural consequence

that the trial court having at hand not

only the benefit of the facts garnered at

the trial, but also the "relevant" and

"probative" matters gleaned at the

sentence hearing, may make findings of

fact which include aggravating and

„

seemingly at odds with the prior jury

determination. Nonetheless, unless a

clear abuse of discretion is shown, the

trial court's findings of fact will be

upheld.

In the case at bar there was

sufficient evidence for Count 2 of the

indictment to have remained before the

jury. This was so by way of the

accomplice statute. However, as

previously stated, Counts 1 and 3 charged

murder in the first degree wherein two or

more persons were intentlonally killed.

The charges in Counts 1 and 3 were in no

way connected with a killing for

pecuniary gain, nor under those counts

was there the necessity of finding that

» the appellant was an accomplice. ‘Thus,

if after the trial and sentence hearing

the trial court independently determined

that the murdere were accomplished ea

r n

3 ee ee es

9 l

pursuant to the charges in Counts 1 and 3

and not Count 2, it was entirely within

the killings were not committed for

pecuniary gain and that the appellant was

a the trial court's discretion to find that

8 not an accomplice. Further discussion

;

ke regarding the trial court's findings of

4 fact after the sentence hearing will be

1 necessary later in this opinion, but for

: the purpose of this issue we find no

g abuse of discretion.

III.

Prior to trial the appellant filed a

"Motion to Require District Attorney to

Disclose Evidence." Side bar colloquy by

the assistant district n regarding

State evidence which he considered would

be a "bomb" or "big surprise" prompted

this motion. The trial court granted the

motion and ordered the district

attorney's office "to submit to the *

attorneys for the defendant a list of all 4

witnesses which have been subpoenaed and

a list of all witnesses who will be

subpoenaed."

At trial the State called their *

"bomb," Eddie Hebison, a narcotics

officer for the state of Texas. Officer

Hebison's name was not included on the 5

list of witnesses submitted by the State .

which included thirty-four names. 3

Officer Hebison's testimony was basically

that on March 19, 1976, he went to the

"Wet and Wild Lounge" in Houston, Texas,

working as cover for his partner, David

Hammonds, who was to arrange a drug

transaction with the appellant. While %

Sitting at a table with his back to Agent

Hammonds and appellant, he heard

appellant tell Hammonds "that he would

not do any larger drug transaction with

him at this time because he was going to

Alabama to take care of some family

business and kill someone there, and that

he had learned that his brother's killing

had not been an accident, that It vas

that he had been murdered with a

sawed-off shotgun in a drug rip off

deal." Appellant did sell a small

quantity of marijuana and methamphetamine

to Agent Hammonds at that time. Ina

Texas trial that resulted in a hung jury, 4

Officer Hebison testified against q

appellant as to that sale in Texas.

Appellant maintains that reversible

error occurred when the State called

Officer Hebison whose name was not

included on the list of witnesses which

the court had ordered to be turned over.

Appellant contends that had Hebison's

name been included the Texas transcript

concerning the drug case could have been

obtained. Without the Texas transcript,

appellant argues he was not able to

effectively impeach Hebison and that his

right to cross-examination was impaired.

We do not agree.

While this court will not sanction

disregard of a court order, we have been

cited to no authority which would require

the State to submit to an accused a list

of all witnesses it expects to call at

the accused's trial. In Thigpen x.

State, 49 Ala. App. 233, 270 So. 2d 666,

671 (1972), this court stated: |

"..-we do not deem the consti-

tutional right to compulsory

process in a criminal case to

operate in such a manner as to

compel pre-trial discovery as

to who in fact are witnesses

for the State. Rather, the

law assumes that defense

counsel will act with due

diligence so as to have such

witnesses as nec

available at tr hen, by

way of compulsory peeoess for

obtaining such witnesses, the

defendant is secured of a

proper presentation of his case

at trial...."

In Dolvin v. State, 51 Ala. App. 540, 287

1 So. 2d 250 (1973), fifteen witnesses were

i __ listed on the docket sheet at least three

| days before the trial. This represented

: two-thirds of the witnesses called by the

a State. This court in Dolvin, relying in

a part on the Thigpen decision, held that

| knowledge of the identity of the fifteen

5 witnesses could have furnished the

4 defense counsel with some indication of 5

* the remaining eight witnesses which were 5

called. In Thigpen and Dolvin it was ‘

pointed out that the defendant had ample ö

opportunity for a thorough and extensive

crose-examination.

In the case at bar the appellant

conducted a thorough and sifting cross-

examination of Officer Hebison. In

addition, Officer Hebison's partner,

* —

; ae > Seg

:» ee sy WE 92

: 25 Pie, ff 3 ned «Salts 2

7 2 * * ‘ 4

David Hammonds, was included on the

witness list submitted by the State. He,

too, had testified in the Texas drug

case. Thus access to the Texas

transcript, for whatever conceivable

defense purpose it might have served,

could have been obtained by notice that

Hammonds was going to be called as a

State witness. Furthermore, Agent

Hammonds was called in the instant case

and testified to substantially the same

facts regarding his conversation with the

appellant in the "Wet and Wild Lounge.”

Thus Hebison's testimony was fully

corroborated by an "anticipated" witness.

Therefore, the absence of Officer

Hebison's name from the State's witness |

list was harmless at most. ARAP, Rule

45.

„

c ee

was W .

After the jury had deliberated

approximately four hours, they returned

with questions for the court. From the

record the following exchange occurred:

"POREMAN: The question — we

had two questions, really.

We'd like to hear a restatement

of your charge, and the second

question is what happens if

there is a hung jury?

"THE COURT: Well, I'm going to

ansver your first question

first — I mean your second

question first. Under our

legal system in the event that

you people cannot reach a

unanimous verdict it would be

incumbent upon this Court to

declare a mistrial, which in

effect means that 1

six to eight to twelve weeks

from now another jury would be

empaneled, another jury would

hear the exact same evidence

that you heard, would hear the

exact same charge that you r

heard and then it would de

submitted to that jury.

The appellant contends that this charge

No exception vas. taken “to

_ thie charge. "Appellant: * on the

c n N

1 *

"plain error“ rule! for his preservation

of error. ARAP, Rule 45A.

Section 13-11-2(c), Code of Ala.

1975, states the course to be followed in

the event of a mistrial in a capital

felony:

*. . . The court may enter a

judgment of mistrial upon

failure of the jury to agree on

a verdict of guilty or not

guilty or on the fixing of the

penalty of death. After entry

of a judgment of mistrial, the

defendant may be tried again

for the aggravated offense, or

he may be reindicted for an

offense wherein the indictment

does not allege an aggravated

circumstance. If the defendant

is reindicted for an offense

wherein the indictment does not

allege an aggravated circun-

stance, the punishment upon

conviction shall be as hereto-

fore or hereafter provided by

law; however, the punishment

shall not be death or life

imprisonment without parole”

—

Rap, Rule 39 (k), concerning certiorari

has been held applicable to the trial

court's oral instructions. Ex te

Jacobs, 371 80. 2d 448 (Ala. 187575

r i

‘ 1

Appellant asserts that the court's

failure to apprise the jury of the option

contained in § 13-11-2(c) was

prejudicial. 3

Although the trial court's answer to :

the jury's question did not comprehen- | ‘

Sively track all the language of !

§ 13-11-2(c), we hold that the instruc-

tion given (or lack of option apprisal)

did not constitute "plain error" within

the meaning of ARAP, Rule 45A. For that

rule to apply there must first be error,

‘

and it must be plainly visible in the %

record. Colley, supra. Here, the trial

court's instruction was correct so far as

it went. It did not misetate the law.

That “another jury could hear the exact

Same evidence." and "vould hear the exact

same charge" in the event of a hung jury

vas a very real possibility and indeed a

probability. We note that the trial

court's response in no way curbed the

jury's right to fail to decide

appellant's fate. A "hung jury" could

still easily have occurred.

Moreover the "option" to reindict

the appellant at a later time for a

ö noncapital offense rested entirely with

the State. The "option" would at no time

: become the "appellant's option." It is

| sheer speculation whether the jury would

have failed to reach a unanimous verdict

had they been informed of the State's

option. It is further speculation

whether the appellant would have been

reindicted for a noncapital offense in

any event. This court will not base its

opinion on speculation or surmise. Thus

on this issue we are required to decide

whether an omission in the trial court's

instruction in response to the jury

question effectively deprived appellant —

‘ of his right to a fair trial free from

d prejudice. We do not believe that it

did. Where a trial court's instruction

to the jury is not as full as counsel

; desires, his remedy is to request written

charges covering the matter omitted.

b Smith v. State, 262 Ala. 584, 80 80. 2d

Several questions are raised

307 (1955). Here, counsel for appellant

; neither excepted nor requested further

‘ Instructions to the jury. Accordingly,

= we hold the "plain error" rule

d inapplicable in this instance.

ae id

concerning the trial court's order af ter

the sentence hearing was conducted. Por

the sake of clarity we set forth the

entire order of the court sentencing the

appellant to death. ;

Tit

‘”

"The court having conducted a

hearing pursuant to Title (sic)

13-11-3 of the Code of Alabama,

to determine whether or not the

Court will sentence Mr. Phillip

Wayne Tomlin to death or to

life imprisonment without

parole, and the Court having

considered the evidence

presented at the trial and at

said sentencing hearings; the

Court makes the following

findings of fact:

"The Court first considers the

aggravating circumstances as

outlined and described in Title

(sic) 13-11-6:

a) The Court finds that the

Capital Felony was committed by

Phillip Wayne Tomlin or that he

was present at and assisted in

the commission of the Capital

Felony;

"(b) The Court finds no

evidence that Mr. Phillip Wayne

Tomlin was previously convicted

of another Capital Felony.

However the Court finds that

the Defendant has been in and

out of trouble with the police

on prior occasions;

"(c) The Court finds that

other than set out above In

subparagraph (b), there is no

evidence that the Defendant did

knowingly create a great risk

of death to many persons:

„(d) The Court finds the

Capital Felony was committed

while the Defendant was engaged

in the commission of a double

homicide in violation of Title

(sic) 13-11-10;

"(e) The Court finds the

Capital Felony was not

committed for the purpose of

avoiding or preventing a lawful

arrest or effecting an escape

from custody;

„(f) The Court finds the

Capital Felony was not

committed for pecuniary gain,

within the meaning of Title

(sic) 13-11-6(6) of the Code of

Alabama.

"(g) The Court finds the

Capital Felony was not

committed to disrupt or hinder

the lawful exercise of any

governmental function or the

enforcement of law;

"(h) The Court finds that

Phillip Wayne Tomlin killed or

participated in the double

murder of Cheryl Moore, a

teenager of fifteen years of

age, and Richard Brune, a

teenager of nineteen years of

age, at the Interstate 10

Highway Exit Ramp at Theodore-

Dawes, Mobile County, Alabama.

"It is the judgment of the

Court that the Capital Felony

. eee —_—. 7 — 3 lie. oe aie. ae bee zy"

was especially heinous, A

atrocious, or cruel.

"The Court now considers

mitigating circumstances as

described and set out in

Section 13-11-7, Code of

Alabama.

"(a) The Court finds that

Phillip Wayne Tomlin has a

history of prior criminal 4

activity; 7

"(b) The Court finds that the

Capital Felony itself was not

committed while Phillip Wayne

Tomlin was under the influence

of extreme mental or emotional

disturbance;

"(c) The Court finds that the

victims were not a participant 1

in Phillip Wayne Tomlin's %

conduct, and did not consent to :

the act.

„(d) The Court finds that Mr.

Tomlin was not an accomplice in

the Capital Felony committed, 89

but was, in fact a principal 1

who was present and assisted in *

the commission of the double e

homicide. : *

"(e) The Court finds that

Phillip Wayne Tomlin did not

act er extreme duress or ..

under the substantial

domination of another person.

"(f) The Court finds that the

capacity of Phillip Wayne

Tomlin to appreciate the

criminality of his conduct or

to conform his conduct to the

requirements of law was not

substantially impaired.

"The Court having considered

the aggravating clrcumstances

and the mitigating circum-

stances and after welghing the

aggravating and mitigating a

circumstances, it is the K

judgment of the Court that the

aggravating circumstances far )

outweigh the mitigating 4

circumstances and that the a

death penalty as fixed by the

Jury should be and is hereby a

accepted.

"It is therefore considered and

adjudged by the Court that

Phillip Wayne Tomlin is guilty

of the Capital Felony charged

in the indictment, and

specifically of intentionally

killing Cheryl Moore and

Richard Brune during the

commission of a double murder.

"It is therefore ordered and

adjudged that you, Phillip

Wayne Tomlin, suffer death by

electrocution at any time

before the hour of sunrise on

the 8th day of March, 1979,

inside the walls of the William

C. Holman Unit of the Prison

System at Atmore, Alabama, in a

room arranged for the purpose

of electrocuting convicts

sentenced to death by

electrocution.

"It is therefore further

ordered and adjudged by the

Court that the Warden of

William C. Holman Unit of the

Prison System at Atmore, or in

the case of his death,

disability, or absence, his

Deputy, or in the event of the

death, disability, or absence

of both the Warden and his

Deputy, the person appointed by

the Commissioners of

Corrections, at any time before

the hour of sunrise shall on

the 8th day of March, 1979,

inside the walls of the William

C. Holman Unit of the Prison

System at Atmore, in a room

arranged for the purpose of

electrocution convicts

sentenced to death by

electrocution, cause to pass

through the body of said

Phillip Wayne Tomlin, a current

of electricity of sufficient

intensity to cause his death,

and the continuance and

application of such current

through the body of the said

Phillip Wayne Tomlin until the

said Phillip Wayne Tomlin be

dead, and may Almighty God have

mercy on Your Soul."

It Is argued that certain

aggravating circumstances found by the

trial court in the above order are not

aggravating circumstances as defined in

§ 13-11-6, Code of Ala. 1975. We agree.

A basic rule of review in criminal cases

Is that criminal statutes are to be

strictly construed in favor of those

persons sought to be subjected to their

operation, 1 defendants. Ex parte '

Clements, 370 80. 2d 723 (Ala. 1979);

Schehher v. State, 38 Ala-App. 573, 90

So.2d 234, cert. denied, 265 Ala. 700, 90

So.2d 238 (1956). Penal statutes are to

reach no further in meaning than their

words. Clements, supra; Fuller v. State,

257 Ala. 502, 60 80. 2d 202 (1952).

The first aggravating circumstances 5

listed by the trial court, “that the |

Capital Felony was committed by Phillip fs

Wayne Tomlin or that he was present at

and assisted in the commission of the

Capital Felony,” is not an aggravating

circumstance within the meaning of

§ 13-11-6 and should not be listed as

such. That finding is closer akin to a

finding of fact as per § 13-11-4. The

second sentence of the trial court's

finding in paragraph (b) of the

aggravating circumstances is inappro-

priate for the same reason. Likewise is

the trial court's fourth aggravating

circumstance (d) defective. That "the

Capital Felony was committed while the

Defendant was engaged in the commission

of a double homicide in violation of

Title (sic) 13-11-10 is not an aggra-

vating circumstance within § 13-11-6.

Section 13-11-10 is not contained in the

Code. Also, the first part of the trial /

court's eighth aggravating circumstances

(h), "that Phillip Wayne Tonlin killed or

participated in the double murder of

Cheryl Moore, a teenager of fifteen years

of age, and Richard Brune, a teenager of

nineteen years of age, at the Interstate

10 Highway Exit Ramp at Theodore-Dawes,

Mobile County, Alabama," is not an 15

aggravating circumstance.

The above “aggravating circum-

stances" are not contained in the

§ 13-11-6 language and should not have

been included as such in the trial

court's sentencing order as aggravating

circumstances.

That the capital felony was

especially heinous, atroclous, or cruel

is an aggravating circumstance under

§ 13-11-6(8); however, the trial court is

„

required to set out the basis of such a

finding. See: Colley, supra; Hubbard v.

State, 80.24 _,_-(Ala.Cr.App.

1979); Johnson v. State, 80. 24 15

(Ala. r. App., May 22, 1979); Alford v.

State, 307 80. 2d 433, (Fla. 1975); State

v. Dixon, 283 80. 2d 1 (Pla. 1973).

To negate one of the mitigating

circumstances, the trial court must

determine whether appellant has a

significant history of prior criminal

activity within the meaning of Ex parte

Cook, 369 80. 2d 1251, 1257 (Ala. 1978).

It is not sufficient that appellant had a

"history of prior criminal activity" to

negate the mitigating circumstance of

§ 13-11-7(1). Appropriate facts which

substantiate this finding should be

listed.

Though not raised by the appellant,

we note that the trial court's order does

not contain a statement of "the findings

of fact from the trial" as required by

§ 13-11-4. The pertinent portion of

§ 135-11-4, Code of Ala. 1975, reade as

follows:

„. . . If the court imposes a

sentence of death, it shall set

forth in writing, as the basis

for the sentence of death,

findings of fact from the trial

and the sentence hearing, which

shall at least include the +

following:

"(1) One of more of the

aggravating circumstances

enumerated in section 13-11-6,

which it finds exists in the

case and which it finds

sufficient to support the

sentence of death; and

"(2) Any of the mitigating

circumstances enumerated in

section 13-11-7 which it finds

insufficient to outwelgh the

aggravating circumstances."

See Johnson, supra, for comprehensive

findings of fact accompanied by

aggravating and mitigating circumstances

by the trial court upon the conclusion of

the sentence hearing. *

We have carefully searched the

record for any error prejudicial to the

appellant. We have applied the "plain

error rule." After due consideration to

the record and o the alleged errors

asserted on appeal, it is our opinion

that the appellant received a fair

trial.

However, due to the deficiencies in

the sentencing order, this cause must be

remanded with directions that the trial

court's order be extended to include

findings of fact from the trial and

sentence hearing and for a correction of

aggravating and mitigating circumstances

as defined by the statute and that such

be transmitted to this court in answer to

the instant remand.

AFFIRMED IN PART; REMANDED WITH

DIRECTIONS.

Tyson and DeCarlo, 53., concer.

Harrie, P.J., and Bowen, J., concur

in result only.

„*

BOWEN, J, concurring in result.

I disagree with the holding of the

majority in Part IV of its opinion.

I concur only in the result reached

by the majority because, in my opinion,

the plain error rule of ARAP, Rule 45A,

does apply to instructions which the

trial judge failed to mention to the

jury. Omissions from the charge may

constitute error just as may misstate-

ments or incorrect charges. The absence

of certain instructions, by their very

absence, will be just as "plainly

visible” as an incorrect charge.

The majority states that the plain

error rule is inapplicable but then finds

that the omission does not prejudice the

defendant. In effect, they apply the

plain error rule while denying its

applicability. I would merely apply the

rule.

APPENDIX "B"

AUG 28, 1981

THE STATE OF ALABAMA - - - - JUDICIAL

DEPARTMENT *

THE SUPREME COURT OF ALABAMA } 4

SPECIAL TERM, 1981

Ex parte: Phillip Wayne Tomlin :

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(In re: Phillip Wayne Tomlin

79-288 v.

State of Als. ua)

PER CURIAM.

ae aioe and remanded to the Court

of Criminal Appeals on the authority of

Beck X. Aabana. U. 8. „ 100 8.

Ct. 2382, 65 L. Bd. 2d 392 (1980); Beck

v. State, 396 So. 2d 645 (Ala. 1980);

Ritter v. State, [MS. June 12, 19811

So. 24 (Ala. 1981); and Reed x:

e * 2 — . * a PS ties “2s 7 1332 . - *

3 a * 1 7 9 a

State, [MS. June 12, 1981], on rehearing,

Ius. August 28, 1981) 80. 24

(Ala. 1981).

REVERSED AND REMANDED.

All Justices concur, except Maddox,

Jones and Adams, JJ., who concur

specially.

MADDOX, JONES, AND ADAMS, JJ. (Concurring

specially):

By concurring specially we adhere to

the views expressed in our respective

opinions in Ritter v. State, [MS. June

12, 1981}, 380. 24 (A1. 1981),

to the effect that we would not reverse

the conviction in any case in which the

record of trial affirmatively precludes .

eng shovitig which would entitle the | 1

defendant to a jury instruction on a

lesser included offense.

Because the per curiam opinion

mandates a retrial on the issue of guilt,

S 2 . A . 2 2 —_ ~

0 ~~ oe - 7 8 i r* eee N

n FF ˙ A i a Me le Oe 98

as well as the issue of sentence, we re-

emphasize the proposition that an

Instruction on a lesser included offense

is required "on any lesser included

offense supported by the evidence," Beck

v. State, 396 So. 2d 645, 657 (Ala.

1980), but an instruction on a lesser

included offense would be appropriate

only if there was evidence which would

support the giving of such an ’

instruction. Roberts v. Louisiana, 428

U. 8. 325, 96 8. Ct. 3001, 49 L. Ed. 2d

974 (1976), Beck v. Alabama, 100 S. Ct.

2382, 2386 (footnote 7) (1980).

APPENDIX "Cc"

: DEC. 9, 1983 N

b THE STATE OF ALABAMA - - - JUDICIAL “3

5 DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1983-1984

3 Ex parte: Phillip Wayne Tomlin

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(Re: Phillip Wayne Tomlin 4

79-288 v. 1

State of Alabana)

ON APPLICATION FOR REHEARING

FAULKNER, JUSTICE. ;

;

Phillip Wayne Tomlin was convicted

under Alabama's 1975 death penalty

statute of first dégree murder wherein

two or more people are intentionally

killed by one or a series of acts and of

first degree murder done for a pecuniary

or other valuable consideration or

pursuant to a contract or for hire.

Sections 13-11-2(a)(10) and (7), Code of

Alabama (1975) (repealed). The trial

court held a sentencing hearing and

entered an order setting out ite findings

as to aggravating and mitigating

circumstances and sentencing the

defendant to death. On appeal the Court

of Criminal Appeals affirmed the

defendant's conviction, but found the

trial court's sentencing order defective

in several aspects. It entered an order

remanding the cause with instructions to

the trial court to amend its sentencing

order to comply with the Court of

Criminal Appeals' decision.

While Tomlin's petition for writ of

certiorari was pending before this court,

the United States Supreme Court handed

down Beck v. Alabama, 447 U.S. 625

(1980), in which it found Alabama's 1975 4

death penalty statute defective because

‘ the preclusion clause in the act

prohibited juries from considering any

lesser included offenses. Because we

2 interpreted Beck v. Alabama to require

ne that all defendants theretofore convicted

F under that statute be granted new trials,

we entered an order reversing Tomlin's

3 conviction.

. The State filed an application for

rehearing in which it asked us to

reconsider our interpretation of Beck v.

Alabama. While the application for

rehearing was pending, the Supreme Court

released its opinion in Hopper v. Evans,

456 U.S. 605 (1982). Evans had been

convicted and sentenced to death after jg

testifying that he intentionally shot te

proprietor of a pawnshop during a

2 1 8 a hid, N Fs 688 i

SE te 4 r eS

robbery. Because Evans suggested no

plausible claim not contradicted by his

: own testimony at trial which would

5 entitle hin to a jury Instruction on a

lesser included offense, the Court ruled

) that he had not been prejudiced by the

| preclusion clause. It concluded,

therefore, that Evans was not entitled to

anew trial. Hopper, supra, 456 U.S. at

613-14. We hereby withdraw our previous

opinion in this case in order to enter an

order in accordance with Hopper and its

progeny.

A defendant convicted under

§ 13-11-2 of the 1975 statute is entitled

to a new trial because of the preclusion

clause in the statute if there was

evidence introduced at trial which would

have warranted a jury instruction on a

lesser included offense or if the

defendant suggests any plausible claim

3 5 * e n a

* 8 * *

ca *

not contradicted by his own testimony

which he might concelvable have made

which would have entitled him to a jury

instruction on a lesser included offense.

Cook v. State, 431 So. 24 1322, 1324

(Ala. 1983).

Tomlin testified that he was in

bp. Texas at the time of the killings. We

examined in Cook v. State, supra, the

effect of an alibi defense on the

question of whether a defendant convicted

under the 1975 death penalty statute is

entitled to a new trial because of the

preclusion clause. We concluded that

when a defendant testified that he was in

a distant location when the crime was

committed, his own testimony directly 4

contradicted any evidence he might have ,

introduced to show that he was guilty of ==

2 lesser included offense. Cook, supra, .

at 1525.

a pt BY vw a a ee eee ees oy eee. 1 4 r

1 5 2 * 8 .

Cook is clearly controlling here.

The petitioner argued that, but for the

preclusion clause, he might have

introduced evidence that Daniels, who was

allegedly with Tomlin at the time in

question, did the killing, or that Tomlin

intentionally killed only one of the

victims, or that Tomlin was under the

influence of drugs at the time of the

killings. All of the claims suggested by

the petition are, however, in conflict

with Tomlin's own testimony. Tomlin is

not, therefore, entitled to a new trial

based on the presence of the preclusion

Clause in the statute.

Tomlin raised the following

. additional issues in his petition for 3

writ of certiorari: ;

(1) Whether counte one and three of

the indictment were defective;

“Fe

(2) Whether the trial cort should

have refused to allow the State to call a

witness omitted from a list of potential

witnesses supplied by the State;

(3) Whether the trial court should

have granted a motion to exclude as to

count two of the indictment which charged

the defendant with murder for pecunlary

or other valuable consideration or

pursuant to a contract or for hire;

(4) Whether the jury charge was

sufficient;

(5) Whether the verdict form was

sufficient;

(6) Whether the trial court

properly responded to questions from the

jury as to what would happen in the event

of a hung jury.

SUFFICIENCY OF COUNTS ONE AND THREE

OF THE INDICTMENT

Tomlin did not file his demurrer to

the indictment until after the jury was

empaneled. By appearing and entering a

plea at his arraignment, the petitioner

waived any irregularities in the

indictment unless the indictment was so

defective that it left the accused

unaware of the nature and cause of the

charges against him. Canada v. State,

421 So. 24 140, 145 (Ala. Crim. App.

1982).

Omitting the formal parts of the

indictment, count one charges that

Tomlin: ;

„ + „ did unlawfully, and

with malice aforethought kill

Richard Brune and Cheryl Moore

by, to wit: on January 2, 1977,

at a location on or near

ang

Interstate 10 in Mobile County,

eat 88

Alabama, was shot with a gun,

[sic] in violation of Act

42 Number 213, Section 2, Sub-

Section J (Act f 213, §2(j)),

Acts of Alabana, Regular

* Session, 1975, against the

Fe ee oe Se ey

0 peace and dignity of the State

; of Alabama." ‘3

Petitioner's contention that count

one charged no more than first degree

* murder of two persons is not well taken.

“er. 22 > whe

oe ew Se Le ee eee eae ee

The capital murder statute does require

5 that the victim be killed by "one or a

series of acts," an allegation omitted

from count one of the indictment. The

omission did not, however, leave the 24

defendant unaware of the nature and cause 4

of the charge against him in light of the

reference to the death penalty statute by

act number in each count of the indict-

ment. A

Count three alleged, in pertinent

part, that Tomlin:

„ „ did unlawfully,

intentionally, and with malice

aforethought kill Richard Brune

and Cheryl Moore, by shooting

them with a gun, wherein both

Richard Brune and Cheryl Moore

were intentionally killed by

PHILLIP WAYNE TOMLIN by one or

a series of acts, in violation

of Act Number 213, Section 2,

Sub-Section J (Act #213, §2(4))

and Act Number 213, Section 6,

Sub-Section H (Act #213,

§6(h)), Actes of Alabama,

Regular Session, 1975, in that

said killings were especially

— *

heinous, atroclous or

cruel...."

Count three was, if anything,

overinclusive. We disagree with

petitioner's argument that the State

failed to prove that the murders were

"especially heinous, atrocious or cruel."

The State introduced evidence that Tomlin

had planned to kill Ricky Brune for over

nine months. He traveled from Texas to

Mobile with a "hit man" for the express

purpose of carrying out his plan to kill

Brune. Tomlin and Daniels apparently

gained entry into the back seat of

Brune's car, and then shot not only Brune

but also his fifteen-year-old companion

in the back with a shotgun and a pistol.

We are not inclined to rule as a matter

of law that the murders were not

especially heinous, atrocious or

PAILURE OF THE STATE TO DISCLOSE THE

IDENTITY OF A WITNESS PRIOR TO TRIAL

About nine months prior to the

killings, two officers from the Texas

Department of Public Safety, operating

undercover, talked with the petitloner at

a night club in Houston, Texas, in

connection with an investigation of

illegal drug trafficking. During the

conversation Tomlin allegedly stated that

he intended to go to Alabama to "kill

someone." Tomlin was subsequently

prosecuted in Texas on a drug charge but

was not convicted. His case was nol-

prossed after a mistrial.

The trial court in the instant case

ordered the State to submit to the

defendant the list of the witnesses it

intended to call at trial. The list

included one of the two Texas police

> —

= zs 2 . 1 2 2 a oe 2

3 a 4 * 3 shag * te

* 1838 E . Sn ae eer”

officers. At trial the State called both

officers, who testified to their

conversation with Tomlin. Petitioner

objected to the testimony of the unlisted

witness, Officer Hebison. On appeal he

argued that, had he known Hebison was

going to testify, he would have acquired

a transcript of the Texas proceedings in

order to facilitate his cross-examination

of Hebison. \

ae We fail to see how inclusion of both

* Qe 8

one ee

aN “

officers' names would have provided any

better notice of the need to obtain the

Texas transcript than was afforded by the

inclusion of one of their names. Both

testified to substantially the same

facts. If, indeed, there wae any error,

it was harmless. A.R.A.P. 45.

—

111

WHETHER A MOTION TO EXCLUDE SHOULD

HAVE BEEN GRANTED AS TO COUNT TWO

Count two charged that the killings

were done for pecuniary or other valuable

consideration or pursuant to a contract

or for hire, in violation of § 13-11-2

(a)(7), Code of Alabane (1975)

(repealed). The trial court submitted

all three counts to the jury, which

returned a verdict of guilty "as charged

in the indictment." The jury, therefore,

convicted Tomlin of every crime included

in the indictment, including murder

pursuant to a contract or for hire.

The Court of Criminal Appeals

affirmed, based on the evidence that

Tomlin was accompanied by Daniels, whom

he introduced as a "hit man." Even

though Tomlin did not himself act

pursuant to a contract or for hire, there

i . r

i. ae

was sufficient evidence to convict him

because under Alabama's accomplice

statute all persons concerned in the

commission of the crime must be indicted,

tried, and punished as principals.

Section 13-9-1, Code of Alabama (1975)

(repealed).

The petitioner argued that the

court's findings in its sentencing order

could not be reconciled with the jury

verdict. The court's sentencing order

states, inter alia, that "the capital

felony was not committed for pecuniary

gain" and that "Mr. Tomlin was not an

accomplice ... but was in fact a

principal who was present and assisted in

the commission of the double homicide.”

The finding that Tomlin did not act

for pecuniary gain was not at odds with

the theory that he hired Daniels as his

“hit man" and was, therefore, liable as

Daniel's accomplice. The court's finding

that Tomlin was not an accomplice but was

present and assisted in the killings is

incongruous on its face. If Tomlin

assisted Daniels in the killings he was,

by definition, Daniel's accomplice. The

finding In question was made with

reference to § 13-11-7(4), Code of

Alabama (1975) (repealed), which provides

that it is a mitigating circumstance to

be considered in sentencing the defendant

if the defendant was an accomplice whose

participation was relatively minor. The

court was apprently attempting to state

that Tomlin was not an accomplice whose

participation was relatively minor, but

simply omitted that crucial language. At

any rate, the issue is moot. The Court

of Criminal Appeals ruled that the

finding in question was "defective" and

ordered that the cause be remanted for a

—

correction of the sentencing order.

Objections based on the content of the |

sentencing order should be raised after

remandment.

SUFFICIENCY OF THE JURY CHARGE

1 On appeal petitioner argued, for the

| first time, that the elements of

premediatation, unlawfulness, and malice

aforethought should have been included in 1

N the charge. Failure to include these

. elements, he argued, constituted plain

: error which affected his substantial

rights. A.R.A.P. 39(k).

We disagree. The oral charge must

be judged within the context of the facts

in dispute. Van Antwerp v. State, 358

So. 24 782, 786 (Ala. Crim. App.), cert

denied, 358 So. 24 791 (Ala. 1978).

There was no dispute as to whether the

killings were premeditated, unlawful, and

done with malice aforethought. Tomlin

either carried out the brutal, execution-

style killings after months of planning

or he was in Texas at the time of the

killings and had no ne of then.

There was no evidence to suggest

accident, passion, justification, or

provocation.

SUFFICIENCY OF THE VERDICT FORM

Although he did not object to the

verdict form which was offered to the

jury, petitioner now argues that there

was a fatal variance between the

indictment and the jury verdict, which

read: :

"We, the jury, find the

defendant guilty of murder as

‘charged in the indictment and

fix the punishment at death."

The same argument with regard to a

verdict form which was virtually

identical to the one in the case at bar

was rejected in Johnson v. State, 399 So.

2d 859, 865 (Ala. Crim. App.), affirmed

in part, reversed in part on other

grounds, 399 So. 2d 873 (Ala. 1979).

That case is controlling.

THE COURT'S INSTRUCTIONS REGARDING

A MISTRIAL

After the jurors had deliberated

some four hours, they returned with

several questions, the second of which

was:

"What happens if there is a

hung jury?"

The Court replied:

"Well, I'm going to answer your

first question first -- I mean

you second question first.

Under our legal system in the

event that you people cannot

reach a unanimous verdict it

would be incumbent upon this

Court to declare a mistrial,

which in effect means that

approximately six to eight to

twelve weeks from now another

jury would be empaneled,

another jury would hear the

exact same charge that you

heard and then it would be

submitted to that jury.

Okay?"

Although he did not object at trial,

the petitioner argued on appeal that 11

was plain error for the court not to

instruct the jury of the possibility that

Tomlin could have been reindicted and

tried for non-capital murder.

“= ae

eS ees

N **

It is true that the option mentioned

by the petitioner would have been open to

the State in the event of a mistrial.

Por that matter, the State could have

dropped all charged against the

defendant. We fail to see how the

omission could have prejudiced the

defendant. Looking at the instruction

from Tomlin's vantage point when the

question was asked, an instruction which

fully set out all alternatives open to

the State, including the State's option

to nol-pros the case, would have been as

likely to harm as to benefit the

defendant. Petitioner cannot, after

waiving his objection at trial, bring the

matter up on appeal.

The decision of the Court of

Criminal Appeals is hereby affirmed.

APPLICATION GRANTED; OPINION OF

AUGUST 28, 1981 WITHDRAWN; OPINION

SUBSTITUTED; AFFIRMED.

Torbert, C. J., Maddox, Jones,

Shores, Embry, Beatty and Adams, JJd.,

concur. 2

Almon, J., not sitting.

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston III, an

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court of

the United States and one of the

Attorneys for the State of Alabama,

hereby certify that on thſs day of

March, 1984, I did serve the requisite

number of copies of the foregoing on the

Attorneys for Phillip Wayne Tomlin,

Petitioner, by mailing the same to them

first-class postage prepaid and addressed

as follows:

Hon. James E. Atchison

Hon. Richard D. Horne.

Hon. William B. Jackson, II

Attorneys at Law

P. O. Box 1706

Mobile, AL 36633

JOSEPH G. T. MARSTOW IIT

ASSISTANT ATTORNEY GENERAL

— — a 2. * r 11. „ „

;

aa oe 4S

ADDRESS OF COUNSEL:

Office of the Attorney General

250 Administrative Building

64 Nortn Union Street

Montgomery, Alabama 36130

(205) 834-5150

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.