Phillip Wayne Tomlin v. State

The appellant, Phillip Wayne Tomlin, was originally tried in 1978 for the murders of Ricky Brune and Cheryl Moore. These murders
were made capital because a double murder was committed. 1 This court affirmed the appellant's conviction in 1979 but remanded
the case to the trial court for correction of its sentencing order. See Tomlin v. State, 443 So.2d 47 (Ala. Cr. App. 1979).
This court's judgment was later affirmed by the Alabama Supreme Court in Ex parte Tomlin, 443 So.2d 59 (Ala. 1983). The United
States Supreme Court denied the appellant's request for certiorari in 1984. After the trial court submitted an amended sentencing
order, the Alabama Supreme Court affirmed the appellant's conviction in Ex parte Tomlin, 516 So.2d 797 (Ala. 1987). On the
appellant's second request for rehearing, the Alabama Supreme Court reversed his conviction for improper comments made in
the prosecutor's closing argument. Ex parte Tomlin, 540 So.2d 668 (Ala. 1988). The instant appeal results from the appellant's
subsequent trial, which occurred in 1990. In that trial, the jury found the appellant guilty of the murders of Ricky Brune
and Cheryl Moore and recommended a sentence of life without the possibility of parole. The trial court overrode the jury's
recommendation and sentenced the appellant to death by electrocution. Because we must reverse this case on several grounds, we will include only a brief recitation of the evidence presented at
trial. The evidence tended to show that on January 1, 1977, the bodies of Ricky Brune and Cheryl Moore were discovered in
an automobile on the side of interstate highway (I-65) at the Theodore-Dawes exit ramp near Mobile, Alabama. Both had been
shot. Ricky Brune, a 19-year-old, had been shot once in the head above the eye and once in the neck; two shots had passed
through his left arm and had entered his chest. He died as a result of trauma and hemorrhage to the body. Cheryl Moore, a
15-year-old, was shot twice. One shot entered her arm and went through to her chest. The second shot, from a shotgun, entered
her back. Her cause of death was gunshot wounds to the body. Evidence established that all of the shots, except the shotgun
wound on Cheryl, were from a .38 caliber gun.