# Appendix — Tomlin v. Alabama

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 954

## Text

“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

OF

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. ae .
* *

. 19 4 4 .,

a

ae eee er ON n
W.

8 f J
4

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

*
1

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,

=
5

5
5

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

7.

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

7
iad

a

.

1-1, Code of Ala. 1975:

2

"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
1
—

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

4

1 „
. ss i *
2 N

—

“i
*
ae

z * a;
« a
* *
3 %
* ~~ 7 2 7

5

* ~~
r 7 — *

.
:
7
*
—
a
2

say that the jury found the appellant
guilty under Count 2, only that they a
properly had the option of so finding.

B

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 = 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.

1

1
*

„
„

n

c ee

2
*

was W .

IV
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
1
4

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,

‘
*
4
and it must be plainly visible in the %
1
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.

2

N

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 :

7

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.

3

"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

2
„

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.

7
ö

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

1

1

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
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,
47

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. ;

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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

a
7

down Beck v. Alabama, 447 U.S. 625
(1980), in which it found Alabama's 1975 4

death penalty statute defective because

5
‘ 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

51

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

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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 .
1

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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.

I.

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

a

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

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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

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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

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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

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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.

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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

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correction of the sentencing order.

Objections based on the content of the |
sentencing order should be raised after

remandment.

IV
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

1

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.

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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."

e

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.

VI

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.

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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

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aa oe 4S

ADDRESS OF COUNSEL:

Office of the Attorney General
250 Administrative Building
64 Nortn Union Street
Montgomery, Alabama 36130
(205) 834-5150

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1308%3A4. Public record. Not legal advice.