Tomlin v. State of Alabama On Return to Remand on Rehearing

    JAN 7 1986

Phillip Wayne Tcmlin v. Stale Mobile Circuit
Court

ON RETURN iO REMAND 
ON REHIARING

i'AY i.i n< , JUDGE
Our original opinion on return to remand is 

withdrawn and this corrected opinion is to be substituted 
for that issued on November 12, 1985.

In the opinion of this court, written by Judge 
Boo.: .ut, filed November 20, 1979, this court held that
certain aggravating circumstances found by the trial court 
in its order were not aggravating circumstances as defined 
in §13-11-6, Code of Alabama 1975. See, Tomlin v. State, 
443 So.2d 47 (Ala. Cr. App. 1979), aff'd, 443 So.2d 59 (Ala. 
1933). This court further found that as to another 
aggravating circumstance, the trial court was required to 
set out the basis of such a finding. This court further 
found that to negate one of the mitigating circumstances the 
trial court was called upon to determine whether the 
appellant had a "significant history of prior criminal 
activity," as that phrase has been employed. This court 
further noted that the trial court's order did not contain a 
statement of the “findings of fact from the trial" as 
required by §13-11-4, Code of Alabama 1975. The court 
cone1udod:

"!D]ue 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."
In response to this order, the very able trial 

judge prepared and issued a document styled "Sentencing 
findings and Order," which is contained in the transcript 
ana which is set out as an appendix to this extended
op inion.

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We find that the actions of the trial court fully 
and completely comply with this court's instruction.

We must now determine whether the death sentence
is appropriate.

Although this crime occurred prior to the 
effective date of the new criminal code, we have previously 
reviewed the propriety of the imposition of a death penalty 
as required by §13A-5-53(a), Code of Alabama 1975.
Baldwin v. Alabama, 456 So.2d 117 (Ala. Cr. App. 1983),
aff'd, 456 So.2d 129 (Ala. 1984), aff'd, ___ U.S. __, 105
S.Ct. 2727 (1985). Our review must include a determination 
of the following questions:

(1) Was any error adversely affecting 
the rights of the defendant made in the 
sentence proceedings?
(2) Were the trial court's findings
concerning the aggravating and
mitigating circumstances supported by 
the evidence?
(3) Was the death penalty the proper
sentence in this case?
As to the first question, we have reviewed the 

sentence proceedings and have found no error adversely
affecting the defendant's rights. As to the second
question, we have reviewed the record and are satisfied that 
the trial court's written findings concerning the 
aggravating and mitigating circumstances are fully supported 
by the evidence.

To answer the third question, whether the death 
penalty was properly imposed in this case, we must
determine:

"(1) Whether the sentence of death 
was imposed under the influence of 
passion, prejudice, or any other 
arbitrary factor;

"(2) Whether an independent 
weighing of the aggravating and 
mitigating circumstances at the 
appellate level indicates that death was 
the proper sentence; and

"(3) Whether the sentence of death 
is excessive or disproportionate to the 
penalty imposed in similar cases, 
considering both the crime and the 
defendant."

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Alanuma Code §13A-5-53(b) (19/5); see also Beck v. State, 
39b So. 2d o4 5 (Ala. 1981).

ihere -*-3 nothino in the record before us which 
even intimates that the death penalty was imposed under the
lnt of passion, prejudi ce, or any other arbitrary
f ac i. c r .

Our independent weighing of the aggravating and 
mit:gating circumstances leaves us with no doubt that the 
deal h penalty was appropriate in this case. The mitigating 
ciroumscances did not outweigh the aggravating 
circumstances. There was one statutory aggravating 
v-iri urns Lance, that the "capital felony was especially 
heinous, atrocious or cruel." Code of Alabama 1975, §13-11- 
6(8). There was no statutory mitigating circumstance. 
Finning none of the claims of the nonstatutory mitigating 
circumstances raised by appellant to have merit, we find 
that the mitigating circumstances did not outweigh the 
aggravating circumstances and that the death penalty was 
appropriate in this case. We agree with the trial court's 
finding that "[ejven if every mitigating factor, claimed by 
the Defendant or suggested in any fashion by this case, were 
to be found by the Court, it would be more than counter­
balanced by the other facts in this case."

In regard to the final determination this court 
must make, we find that the death penalty imposed on the 
defendant is not excessive or disproportionate to the 
penalty imposed in similar cases. See, e.g., Hill v. State, 
455 So.id 930 (Ala. Cr. App.), aff'd, 455 So.2d 938 (Ala.),
cert. denied, ___ U.S. ___, 105 S.Ct. 607 ( 1984).
We have searched the record, as required by Rule 45A,
A.R.A.P., and have found no error which adversely affected 
the rights of the defendant. The sentence of death was 
propi i in this case. Therefore, the judgment of the trial 
court is due to be, and it is hereby, affirmed.

EXTENDED OPINION ON RETURN TO REMAND WITHDRAWN; OPINION SUBSTITUTED;
JUDGMENT AFFIRMED.
ALL THE JUDGES CONCUR.

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APPEND [X

IN THE CIF.CUIT COURT OP 
MOBILE COUNTY, ALABAMA

STATE OF ALABAMA
PLAINTIFF,

V 3 •
PHILLIP WAYNE TOMLIN, 

DEFENDANT.

j
)
)
) CASE NO. CC-77-001396 
) CAPITAL FELONY
)
)/
)

SENTENCING FINDINGS AND ORDER
Following the jury's verdict finding the Defendant 

guilty of capital felony as charged in the indictment, 
this Court on, to wit, November 30, 1978, conducted a
sentence hearing pursuant to Section 13-11-3, Code_of
Alabama, 1975.* After considering the evidence presented 
at trial and the matters presented at the sentencing 
hearing, this Court, on December 8 , 1978, set the 
Defendant's sentence at death. On appeal, the Court of 
Criminal Appeals of Alabama affirmed the Defendant's 
conviction but remanded the cause for extension of the 
sentencing order by including findings of fact from the 
trial and sentence hearing and correction of the 
aggravating and mitigating circumstance findings. Tomlin 
v. State, 443 So.2d 47, 59 (Ala.Cr.App., 1979); affirmed

443 So.2d 59 (Ala., 1983); cert. den. ___ U.S. ___, ___
L.Ed.2d ___, ___ S.Ct. ___, 52 U.S. L. Wk. 3776 (1984).

Now, this cause coming on for extension and 
correction of the sentencing order, pursuant to the 
mandate of the Court of Criminal Appeals, the Court, 
after consideration of the trial evidence and the matters 
presented at the sentence hearing and after a review of 
the transcript of the same, makes the following:

*This offense occurred January 2, 1977. On that date the 
applicable law was Act. No. 213, Acts of Alabama, 1975- 
However, this Act is codified as Sections 13-11-1 through 
9, Code of Alabama , 1975, and for the sake of convenience, 
this order will refer to the codified provisions.

APPENDIX



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GENERAL PI :DINGS OP FACT
The Court hereby find that the following were facta 

proven beyond a reasonable doubt by the evidence at 
trial, and the Court hereby finds them as facts in this

case .
A. On November 25, 1 975, the Defendant's younger 

brother, David Tomlin, was killed as the result of the 
accidental discharge of a shotgun in an incident 
involving the said David Tomlin and one Richard Brune«

B. On March 19, 1976, the Defendant made a 
statement to a Texas state police officer, who was acting 
undercover, that he (the Defendant) had to return to 
Mobile to kill the person who had caused David Tomlin's

death.

C. On January 1, 1977, the Defendant and one Ron 
Daniels, both of whom lived in Houston, Texas, flew from 
Houston to New Orleans, Louisiana and from there traveled 

by automobile to Mobile.

D. The said Ron Daniels had no personal interest in 

Richard Brune, Cheryl Moore or their deaths.

E. On arrival, the Defendant stated that he and 
Daniels had come to Mobile to kill Richard Brune, and the 
defendant introduced Ron Daniels as a "hit man. The 
court finds that Ron Daniels was a hired or contract 
killer, one who murdered pursuant to a contract or for 
hire, and the Court finds that the Defendant knew this.

2
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1

p. The Defendant had owned a .38 caliber Smith and 
Wesson revolver and a 16 g .uge shotgun as early as May 
30, 1976. On their arrive . in Mobile on January 1, 1977, 
the Defendant and Daniels aad in their possession a .38 
caliber pistol, a .44 caliber pistol and a 16 gauge 

s'no tgun.

0. On January 2, 1977. the Defendant and Daniels 
were observed driving a 1968 Ford which belonged to the 
Defendant's sister. This car was observed at the scene 
of the homicides just minutes before they occurred and 
was found at New Orleans International Airport on January 
29, 1977- Although it was never reported stolen, the 
automobile had been in the airport parking lot since 

January 2, 1977-

H. At sometime between 5:00 p.m. and 5:30 p.m., 
January 2, 1977, David Brune and Cheryl Moore were killed 
by numerous gunshot wound3 inflicted on them from the 
back seat of Brune's automobile, while said vehicle was 
parked on a ramp of 1-10 in Mobile County, Alabama. The 
wounds were inflicted by a .38 caliber Smith and Wesson 
pistol and a 16 gauge shotgun. The wounds inflicted on 
David Brune and Cheryl Moore were of such a nature that 
they involved mutilation and pain prior to death. At the 
time of his death Richard Brune was 19 years of age; at 
the time of her death, Cheryl Moore was 15 years of age. 
The victims still had their money on their persons, when 

their bodies were found.

I. The Court finds that the persons who murdered 
Richard Brune and Cheryl Moore were the Defendant and Ron 

Daniels.

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j. The Court finds t at the killings of Richard 
nrane and Cheryl Moore wer ■ intentional, the killing of 
Richard Brune having been jlanned for at least nine 

months.

K. 'The Court finds that the killing of Richard 
Brune and Cheryl Moore ani each of them was unlawful, 
intentional, malicious and premeditated.

L. The Court finds that Richard Brune and Cheryl 
Moore died by a series of acts, namely gunshots.

M. The Court finds that in murdering Richard Brune 
and Cheryl Moore, Ron Daniels was acting pursuant to a

contract or for hire.

N. The Court finds that at the time they murdered 
Richard Brune and Cheryl Moore, the Defendant and Ron 
Daniels were both present and acting in concert with each

o the r.

O. After murdering Richard Brune and Cheryl Moore, 
the Defendant and Ron Daniels drove the Defendant's 
sister's automobile to New Orleans International Airport, 
arriving th-re at 8:08 p.m. January 2, 1977- They then 
returned to Houston on Eastern Airlines flight 569-

P. Based on the records of this Court, the Court 
finds that on August 7, 1979, Ron Daniels was sentenced 
to death for his participation in this crime. State 
Daniels, Cir. Cm. Mobile Co., HCC 78-622.

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Q. The Court hereby "inds that the Defendant did in 
fact commit murder in the first degree in which two human 
beings, Richard Brune and Cheryl Moore, were intention­
ally killed by the Defende it by one or a series of acts 
as charged in counts 1 and 3 of the indictment. In 
addition, the Court finds that the surplus allegation 
"...that the said killings were especially heinous, 
atrocious or cruel....", was proven beyond a reasonable 
doubt as more particularly appears below in part II, 
hereof.

R. The Court does not find that the Defendant 
himself received any compensation for the murders of 
Richard Brune and Cheryl Moore, so the Court does not 
find that the Defendant himself was a hired or contract 
killer. However, as stated in paragraph "M", above, the 
Court finds that in murdering Richard Brune and Cheryl 
Moore, Ron Daniels acted pursuant to a contract or for 
hire. As stated in paragraph "N", above, the Court finds 
that the Defendant and Ron Daniels were both present and 
acting in concert when they murdered Richard Brune and 
Cheryl Moore. The Court finds that the Defendant, by 
reason of his active and knowing participation in the 
murders of Richard Brune and Cheryl Moore wioh Ron 
Daniels, whom the Defendant knew to be a hired or 
contract killer (See paragraph "E", above), was an 
accomplice of Ron Daniels in murder in the first degree 
pursuant to a contract or for hire. Therefore, the Court 
finds that the Defendant is guilty of murder in the first 
degree pursuant to a contract or for hire as charged in 
count 2 of the indictment.

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AGGRAVATIN} CIRCUMSTANCES 
As to aggravating circumstances aa set out in 

Section 13-11-6, Code of Alabama, 1975, the Court makes 
the following findings:

II.

A. The Court does noc find that the Defendant was

under a sentence of imprisonment at the time of the

capital crime.

B. The Court does not find that the Defendant had

been previously convicted of another capital felony or
felony involving the use or threat of violence to the

person.

C. The Court does not find that the Defendant
knowingly created a great risk of death to many persona, 
other than the two victims of his crime.

D. The Court does not find that the capital felony 
wa3 committed while the Defendant was in any way involved 
in any of the crimes specified in Section 13-11-6(4),

Code of Alabama, 1975-

E. The Court does not find that the capital felony 
was committed for the purpose of avoiding or 
preventing arrest or effecting escape from custody.

F. The Court does not find that the capital felony 
was committed for pecuniary gain _to this Defendant. 
However, this statement is not intended to impinge the 
Court's finding in Section T (R), above, that the 
Defendant was the accomplice of Ron Daniels in murder in 
the first degree pursuant to a contract or for hire.

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G. The Court does nc c f ind that the capital felony

was committed to disrupt e r hinder the lawful exercise of

any governmental function or the enforcement of the

laws •
H. The Court finds that the capi tal felony was

especially heinous , atroci ous and crue 1 . This finding is

based on the following considerations separately and

severally:
1. The Court adopts the following language of the 

Alabama Supreme Court:
"...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 cruel...." (Ex parte:
Tomlin 443 So.2d 59, 63 LAla., 19S3])

2. These homicides were execution-type slayings; 

the gunshots were fired from the back seat of David 
Brune's automobile as the two victims sat in the front

3 . The victims were shot numerous times with a 
pistol and a shotgun, which no doubt caused pain and 
mutilation prior to death. The Court places the greatest 

weight on this consideration.

I. In summary, the Court finds that the Defendant's 
capital felony was especially heinous, atrocious and 
cruel within the meaning of Section 13-11-6(8),
Code of Alabama, 1975, but the Court does not find any 
other aggravating circumstance as set out in said Section 

13- 11- 6 .

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h i  .
MITIGATING CIRCUMSTANCES

As to mitigating circ lmstances, the Court finds the 
following:

A. The Court does not find that the Defendant has 
no significant history of prior criminal activity. The 
Court finds that prior to these homicides the Defendant 
had been convicted of petty larceny, possession of 
marijuana, possession of drug paraphernalia and carrying 
a prohibited weapon. The pre-sentence report (which the 
Defendant does not question) indicates that these 
convictions were not mere aberrations in a generally law 
abiding life-style but were entirely consistent with the 
Defendant's general life-style prior to and at the time 
of these homicides. A copy of the pre-sentence report is 
attached hereto. At the sentencing hearing, Counsel for 
the Defendant argued that there is nothing in the 
Defendant's background that shows a tendency toward 
violence. The Court will treat this as a claim of a 
non-statutory mitigating circumstance and will discuss it 
below.

B. The Court does not find that the Defendant 
committed the capital felony while he was under the 
influence of extreme mental or emotional disturbance.
The evidence that this crime was long and carefully 
planned and carefully executed clearly shows that mental 
or emotional disturbance played no part in it.

C. The Court does not find that either of the 
victims was a participant in the defendant's conduct or 
consented to the act. The evidence clearly shows that 
the exact opposite was the case.

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I

D. As to the matter set out at §13-11-7(4), Code of

Alabama, 1975, the Court inds as follows:

1 . The Defendant wa;. a principal and full-fledged
participant in murder in he first degree wherein two or 
more human beings were in entionally killed by the 
Defendant by one or a ser es of acts.

2. The Defendant war. an accomplice in murder in the 
first degree, wherein the killing was done pursuant to a 
contract or for hire as set out in detail in Section I 
(R), above. However, the Court does not find that the 
Defendant’s participation in such capital felony was in 
any sense minor.

3 . Therefore, the Court does not find the 
mitigating circumstance set out at Section 13-11-7(4), 
Code of Alabama, 1975 -

E. The Court does not find that the Defendant acted 
under any duress or under the domination of any other 
person. In fact, the Defendant was the instigator and 
planner of the capital felony.

P. The Court does not find that the capacity of the 
Defendant to appreciate the criminality of his conduct or 
to conform his conduct to the requirements of the law was 
in any way impaired. The evidence indicates the exact 
opposite.

G. The Court does not find that the age of the 
Defendant, which wa3 22 years at the time of the capital 
felony, was a mitigating circumstance in his crime.

H. Therefore, the Court finds no statutory 
mitigating circumstance as listed in Section 13-11-7,
Code of Alabama, 1975 -

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I. A3 to non-atatutory mitigating circumstances, 
the Court considers all of the matters raised by the 
Defendant and by the evidence at trial and at the 
sentencing hearing. The Court particularly considers the 
Defendant's argument rela+ing to his claim that his 
background prior to this c rime showed no tendency toward 
violence. In light of the undisputed matters in the 
attached pre-sentence report, this Court does not make 
such a finding. However, the Court does find as a 
particular non-statutory mitigating circumstance that 
there is no indication that prior to his commission of 
capital felony the Defendant had any tendency toward 

serious violence.

IV.
SUMMARY AND CONCLUSION

The Court has found, on the basis of proof beyond a 
reasonable doubt, that the Defendant committed and has 
been duly convicted of the capital felony condemned by 
Section 13-11-2(a)(10), Code of Alabama, 1975 - first 
degree murder wherein two or more human beings are 
intentionally killed by one or a series of acts. In 
addition, the Court has found on the same basis, that the 
Defendant committed and has been duly convicted of the 
capital felony condemned by Section 13-11-2(a)(7), Code 
of Alabama, 1975 - murder in the first degree pursuant to 
a contract or for hire. Either conviction would 
authorize the death sentence without more. Kyzer v. 
State, 399 So.2d 330 (Ala., 1981). Even if every 
mitigating factor, claimed by the Defendant or suggested 
in any fashion by this case, were to be found by the 

Court, it would be more than counter-balanced by the

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other facta in this case. In addition, this Court has 
found that the Defendant's- crime waa eapecially heinous, 
atrocious and cruel- See II (H), aoove. After carefully 
weighing the aggravating and mitigating circumstances, 
the Court upholds the deamh sentence.

Although, as noted above, the Defendant stands duly 
convicted of two different capital felonies, he may be 
sentenced, under the circumstances of this case, for only 
one. Duncan v. State, 436 So.2d 883 (Ala.Cr.App., 1983);
cert. den. (Ala. 1983); cert. den. ___ U.S. __ , __
L.~Ed.2d ____, 104 S.Ct. 720 (1984). Therefore, the Court
will only sentence the Defendant for first degree murder 
wherein two or more human beings are intentionally killed 
by one or a series of acts, as condemned by Section 
1 3_1 1 _2 (a)(10), Code of Alabama, 1975-

JUDGMENT AND SENTENCE
It is therefore considered and adjudged by the Court 

that Phillip Wayne Tomlin is guilty of Capital Felony as 
charged in the indictment, and specifically of murder in 
the first degree wherein two human beings, namely Cheryl 
Moore and Richard Brune, were intentionally killed by the 
said Phillip Wayne Tomlin by one or a series of acts.

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 day of

(ipMiuLiAi inside the walls of the William C. Holman
J Unit of the Prison System at Atmore, Alabama, in a room 
arranged for the purpose of electrocuting convicts 
sentenced to death by electrocution.

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It is therefore further ordered and adjudged by the 
Court that the Warden of William C. Holman Unit of the 
State Prison 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 Commissioner of 
Corrections, at any time before the hour of sunrise shall

William C. Holmaw Unit of the Prison System at Atmore, in 
a room arranged for the purpose of electrocuting 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.

inside the walls of the

Ordered

Ferrill D. McRae, Circuit Judge 
Thirteenth Judicial Circuit 
State of Alabama

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