Tumblin v. State

29 So. 3d 1093, 35 Fla. L. Weekly Supp. 133, 2010 Fla. LEXIS 258, 2010 WL 652982
CourtSupreme Court of Florida
DecidedFebruary 25, 2010
DocketSC07-2111
StatusPublished
Cited by25 cases

This text of 29 So. 3d 1093 (Tumblin v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tumblin v. State, 29 So. 3d 1093, 35 Fla. L. Weekly Supp. 133, 2010 Fla. LEXIS 258, 2010 WL 652982 (Fla. 2010).

Opinions

PER CURIAM.

Alwin C. Tumblin appeals from a judgment of conviction of first-degree murder and a sentence of death, as well as a conviction for robbery with a firearm. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the convictions, vacate the sentence of death, and remand for a new trial. We conclude that reversible error occurred in the guilt phase of the trial, which affected both the guilt phase and the penalty phase, when a police officer gave his opinion of the truthfulness of a key State witness.

FACTS AND PROCEDURAL HISTORY

Overview

This case involves the May 24, 2004, murder of Jimmy Johns, the owner of Jimmy’s Auto Clinic in Fort Pierce, Florida. Forensic Pathologist and District Medical Examiner Dr. Roger Mittleman testified that Jimmy Johns died as a result of a bullet that entered the left side of his head, traveled through his brain, and lodged in the right rear portion of his brain. Gun powder stippling on the left side of Johns’ head indicated a close but not contact gun shot.

On the day of the murder, Elizabeth Hobson, who worked at the Auto Zone store across from Jimmy’s Auto Clinic, heard a gunshot as she was leaving for lunch. She saw Johns lying on the floor of his shop, and then she saw a short, stocky black “kid” running from the shop with a white towel in his hand. A minute or so later, she saw another black man come out of the shop and leave in a yellow car that looked like a retired taxicab. Another witness, Susan Ooley, also saw a yellow taxicab-like car parked near the auto shop at the time of the murder. She saw someone running from the shop but did not see anything in his hand. Employees of the shop returned from lunch a little after 1 p.m. and found Johns’ body.

Alwin C. Tumblin, age twenty-five at the time, was ultimately indicted and convicted for the murder as well as the armed robbery of Johns. During the investigation, Tumblin’s friend, Anthony Mayes, was also considered to be a suspect. When finally located by Sheriffs Department Lieutenant Dennis Smith, Mayes was handcuffed and taken into custody. He immediately said he wanted to talk, but only to Lieutenant Smith, who had previously spoken with his grandmother. Mayes was taken to the Fort Pierce police station where he [1096]*1096was advised of his Miranda1 rights. He was informally interviewed by Lieutenant Smith before giving a taped interview to Detective Joe Coleman and State Attorney Investigator Jeff Hamrick.2 Mayes’ statements to police implicated Tumblin as the planner of the crimes and as the person who shot Jimmy Johns. No DNA evidence linked Tumblin directly to the murder. The only eyewitness who testified that Tumblin shot Johns was Mayes, who entered a plea to second-degree murder and agreed to testify at trial in exchange for a maximum sentence of twenty years. We discuss the evidence in detail because an error occurred in the guilt phase, during Lieutenant Smith’s testimony concerning the statements made by Mayes, which deprived Tumblin of a fair trial.

Trial Testimony

Jimmy Johns was the owner and operator of Jimmy’s Auto Clinic. On the morning of May 24, 2004, Tumblin, his girlfriend Theresa York, and his friend Anthony Mayes, were at the home of Tumblin’s sister, Rhonda Tumblin. At the time, Tumblin and York were both staying in Rhonda’s home and sleeping in her bedroom. Mayes testified that Tum-blin began “boosting” him up that morning, or attempting to persuade him to participate in a robbery and that Tumblin said he would pay Mayes $300 to act as a lookout. Mayes testified that he heard Tumblin tell York to call Wal-Mart about some bullets and that Tumblin and York then left for a short time. Mayes testified that Tumblin and York later returned to Rhonda’s home and, sometime around noon on May 24, Tumblin and Mayes left in York’s yellow Grand Marquis automobile, which looked like a retired taxicab. Mayes testified that Tumblin took a gun from the waistband of his pants and placed it under the seat of the car, and that Tumblin commented during the ride that “he was gonna kill everybody that exists as if whoever is in there.”3 According to Mayes, they proceeded to Jimmy’s Auto Clinic with Tumblin driving and Mayes in the passenger seat, a trip that took about twenty to twenty-five minutes. On arrival, Tumblin parked the car in front and walked into the auto shop. Mayes testified that he followed Tumblin into the shop where they waited outside the shop office while Johns completed a telephone call.

Mayes testified that when Johns approached them, Tumblin first asked him about a car part but then asked, “Where is it at?” When Johns indicated that he did not understand, Tumblin asked, “Where is the money at?” Mayes testified that after Johns gave Tumblin money and a money clip from his pocket, Tumblin pulled the gun from the back of his pants waistband and held it to Johns’ head. Mayes reported that Tumblin asked Johns, “What you think about this?” According to Mayes, Tumblin then pulled the trigger, killing Johns, who was sixty-seven years old. Mayes said that as he started to run away, he saw Tumblin go toward Johns’ office, where it was later discovered that envelopes with checks to pay the shop’s bills were missing.

When Tumblin returned to his sister’s house, Jean Nicole Ruth, a friend of Mayes, heard Tumblin say, “The cracker [1097]*1097dead and Head [Mayes’ nickname] ran.” Jean Nicole Ruth also testified that when Tumblin returned, she saw him with some papers and envelopes. She said York and Rhonda opened the envelopes and Rhonda took them outside, along with a pan. Although she did not see it, she concluded that Rhonda burned them in the backyard. No envelopes, checks or burnt remains were ever recovered. Later, Rhonda Tumblin borrowed Jean Nicole Ruth’s yellow Buick to go to Rhonda’s aunt’s house. On the way, Rhonda was hailed down by Tumblin, who was on foot next to the road, and by York, who was standing across the street. Rhonda picked up Tumblin and York in the Buick and they drove to Tum-blin’s aunt’s house. In the meantime, based on reports from witnesses at the scene, the police were looking for a yellow car that looked like a retired taxicab. When Tumblin, his sister, and York arrived at the aunt’s house, they found no one home but, while there, were approached by the police, who inquired about the names of the driver and passengers. Tumblin’s sister was then allowed to drive away with Tumblin and York, but about ten minutes later, when they drove into an Amoco station, the car was surrounded by police, who took them to the police station. This second stop was the result of a police helicopter spotting another yellow car, the cai’ that resembled a taxicab, parked behind Rhonda Tumblin’s house. Tumblin’s sister testified that as they were driving to the gas station, they saw the helicopter and Tumblin said, “The cracker must be dead.”

When the police went to Rhonda’s house to investigate, Officer Kathleen Murphy saw a black woman flee the home through a window. The woman was later identified as Jean Nicole Ruth. A search warrant was obtained to search the house, and the search revealed a .32 caliber revolver under some clothes on a chair in the room where Tumblin and York had been sleeping. Four Remington-Peters bullets were found under a pillow on a bed. Evidence at trial showed that at 9:53 a.m. on May 24, 2004, a person with a birth date of November 11, 1981, bought Remington-Peters ammunition at the Fort Pierce Wal-Mart.

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Bluebook (online)
29 So. 3d 1093, 35 Fla. L. Weekly Supp. 133, 2010 Fla. LEXIS 258, 2010 WL 652982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tumblin-v-state-fla-2010.