Jarrell v. State, 1 Div. 863

• Decision Date: 21 February 1978
• Docket Number: 1 Div. 863
• Citation: Jarrell v. State, 355 So.2d 747 (Ala. Crim. App. 1978)
• Parties: Walden Paul JARRELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 747

355 So.2d 747

Walden Paul JARRELL v.STATE.

1 Div. 863.

Court of Criminal Appeals of Alabama.

Feb. 21, 1978.

E. H. Bixler, IV, Mobile, for appellant.

William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State.

BOWEN, Judge.

This is an appeal from a conviction for manslaughter in the first degree arising out of an automobile accident in which a seventeen year old boy was killed.Punishment was fixed at ten years' imprisonment.At trial the appellant was represented by retained counsel.On appeal he is represented by court appointed counsel and provided with a free transcript.

Two issues are presented on appeal: (1) Whether the trial judge erred in denying the appellant's challenge for cause of certain prospective jurors and (2) whether his motion for a new trial was due to be granted on the grounds of newly discovered evidence.

Alabama State TrooperOscar D. Kyles investigated an automobile accident which occurred around 11:30 on the evening of February 19, 1977, on Alabama State Highway 163 near Dauphin Island Bridge in Mobile County, Alabama.The appellant's vehicle, a 1965 Ford pickup truck, had collided with the 1974Ford Mustang driven by Charles Jackson Head, the deceased.Both vehicles were heavily damaged although the Mustang was demolished.There were fresh gouge marks near the center of the highway and debris from the wreck was scattered in an area of approximately ninety to one hundred feet.Skid marks belonging to the appellant's vehicle extended 138 feet south of the point of impact which Trooper Kyles determined to be in the middle of the deceased's lane.

When Trooper Kyles arrived Charles Head was already dead and his face was caved in completely.Carlton Wayne Tillman, a passenger in Head's Mustang, received only minor injuries.The appellant was taken to the emergency room at the University of South Alabama Hospital by ambulance.The two passengers who were with the appellant, Joseph Dale Gentry and Barry Faggard, received only minor injuries.

At the hospital Trooper Kyles attempted to interview the appellant who appeared "delirious" and smelled strongly of alcoholic beverages.The appellant was moaning and apparently could not understand the Trooper's questions.

Dr. Brian Keith Montgomery testified that he was a medical pathologist at the Mobile Infirmary.He stated that Charles Head died from "a massive crushing deformity of the face with massive injury to the brain".

Dr. Douglas H. Brown was an M.D. interning at the University of South Alabama Medical Center and treated the appellant following the accident.He testified that a blood alcohol test of a sample of the appellant's blood resulted in 315 milligrams percent alcohol.A level of 300 "usually implies that the patient is stuporous" and has a tendency to fall asleep or pass out.The appellant was "clinically" intoxicated.Dr. Brown also noticed the odor of alcohol on the appellant.Besides intoxication, the appellant was found to have suffered a cut of the bridge of the nose, several small lacerations and multiple bruises over his body and bruised ribs.Though the appellant made no complaint about his foot, when the appellant returned to the hospital the next day it was discovered he had a fractured bone in his foot.Dr. Brown testified that the blood alcohol test was done as a matter of routine in such cases where intoxication is suspected primarily to determine whether the patient's state is due to trauma from the accident or the alcohol and also to protect the hospital and doctors in a potential malpractice action for not discovering a fracture because the patient was intoxicated and did not complain about that specific injury.

Carlton Wayne Tillman was a passenger in the Mustang driven by the deceased.He was dozing when the deceased ran off the road.He raised up and thought he caught a glimpse of headlights but could not identify the driver of the other car.He stated that neither he nor the deceased had had anything to drink.

John Henry Ferrouillat had a fishing camp on Peavy Island and testified that the appellant came to help him with some mullet nets they had set out.The appellant arrived about four or five o'clock that afternoon and brought ten beers with him.The appellant did not appear intoxicated at any time and only consumed three beers before he left at 11:00 P. M.The appellant did not take any beer with him but left "at a high rate of speed".Mr. Ferrouillat stated that as the appellant was leaving someone asked him why didn't he let one of the two boys drive.The appellant left the fishing camp on one side of Dauphin Island Bridge, drove across the bridge, and the accident happened when he came off the other side of the bridge.

Barry Lamont Faggard was a passenger in the vehicle driven by the appellant.He testified that the appellant did not have anything to drink on the way to the fish camp.However on the way home, as they were crossing the Dauphin Island Bridge, the appellant almost hit two cars on the bridge by swerving into their lane.The appellant was driving about ninety miles an hour Faggard thought, though he did not see the speedometer.When the appellant went around "that little curve"he was on the wrong side of the road and crashed into the Mustang driven by the deceased.Despite the fact that the appellant's truck was twelve years old, Faggard stated that he"had seen the speedometer of this truck at speeds over 100 miles an hour".He did not know whether his parents had made a claim for an insurance settlement on his behalf based on their uninsured motorist clause which would only allow recovery if the appellant was at fault.

The state rested its case and defense counsel's motion to exclude the evidence was denied.

The main thrust of the defense went to an attempted showing that the appellant was not intoxicated or driving in a reckless manner at the time of the collision.

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