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TOMLIN v. STATE6/21/1996
Phillip Wayne Tomlin was convicted of the capital murders of Ricky Brune and Cheryl Moore, made capital because they were accomplished by one act or pursuant to one scheme or course of conduct. See § 13-11-2(a)(10), Code of Alabama 1975 (repealed 1981). At the sentencing phase, the trial court sentenced Tomlin to death by electrocution, overriding the jury's recommendation that Tomlin be sentenced to life imprisonment without parole.
PROCEDURAL HISTORY
Ricky Brune and Cheryl Moore were found murdered on January 2, 1977. Tomlin and John Ronald Daniels were subsequently arrested for the murders. For his participation in the murders, Daniels was convicted of capital murder pursuant to § 13-11-2(a)(10) (subsequently repealed) (double murder) and § 13-11-2(a)(7) (subsequently repealed) (murder pursuant to a contract or for pecuniary gain), and was sentenced to death by electrocution. For his participation in the murders, Tomlin has been convicted of capital murder in three successive trials and sentenced to death each time he was convicted. This appeal stems from his third trial.
A
The First Trial
On September 22, 1977, Tomlin was charged with capital murder in an indictment alleging that he committed a double murder when he murdered Brune and Moore during the same course of conduct, and that he committed murder-for-hire because he committed the murders pursuant to a contract or for pecuniary gain. He was found guilty of capital murder as charged in the indictment and was sentenced to death by electrocution. In Tomlin v. State, 443 So.2d 47 (Ala. Cr. App. 1979), aff'd, 443 So.2d 59 (Ala. 1983), 466 U.S. 954, 104 S.Ct. 2160, 80 L.Ed.2d 545 (1984), this court affirmed his conviction and remanded the cause to the trial court to perfect the sentencing order. On return to remand, we reviewed the trial court's corrected sentencing order and affirmed Tomlin's sentence to death. Tomlin v. State, 516 So.2d 790 (Ala. Cr. App. 1986), aff'd, 516 So.2d 797 (Ala. 1987). However, our judgment was ultimately reversed by the Alabama Supreme Court in Ex parte Tomlin, 540 So.2d 668 (Ala. 1988) (on Tomlin's second application for rehearing), in which the Supreme Court held that the prosecutor engaged in prejudicial misconduct at Tomlin's trial. In compliance with the Supreme Court's holding, we reversed Tomlin's conviction and remanded the cause to the trial court for further proceedings. Tomlin v. State, 540 So.2d 674 (Ala. Cr. App. 1989).
B
The Second Trial
On February 24, 1989, Tomlin was reindicted for the killings under the dual theories of murder-for-hire and double murder. He was retried in 1990. During the course of those proceedings, the trial court granted Tomlin's motion for a judgment of acquittal regarding counts two and three of the indictment, which charged Tomlin with murder-for-hire. The case went to the jury on the charge of double murder. On February 1, 1990, after a jury trial, he was convicted of capital murder. At the sentencing phase of the trial, the jury recommended that Tomlin be sentenced to life imprisonment without the possibility of parole. The trial court overrode the jury's recommendation and sentenced Tomlin to death by electrocution. On appeal, this court held, on several grounds including prosecutorial misconduct, that Tomlin's right to a fair trial had been breached. We, therefore, reversed Tomlin's conviction and remanded the cause to the trial court for further proceedings. Tomlin v. State, 591 So.2d 550 (Ala. Cr. App. 1991). The Alabama Supreme Court denied certiorari on January 10, 1992.
C
The Third Trial
On May 28, 1993, Tomlin was reindict
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