Jolly v. State

Decision Date17 March 1981
Docket Number8 Div. 424
Citation395 So.2d 1135
PartiesIrene Holman JOLLY v. STATE.
CourtAlabama Court of Criminal Appeals

Glenn F. Manning of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Judge.

On March 9, 1979, fourteen year old Pamela Allegood was killed when the automobile in which she was riding was "rear-ended" by the automobile driven by the defendant. As a result, the defendant was indicted for first degree murder. A jury convicted her of murder in the second degree and fixed punishment at ten years' imprisonment.


The defendant maintains in this Court, as she did at trial, that the evidence is insufficient to establish the offense of murder in the second degree, the crime of which she was convicted, or to establish the lesser included offenses of manslaughter in the first and second degrees.

We need not detail the individual testimony presented by each witness at trial. We have thoroughly studied the evidence and are of the opinion that the following summary is an entirely reasonable interpretation of the evidence.

The collision occurred in Huntsville, Alabama, at the intersection of Mastin Lake Road and Blue Spring Road, between 11:00 and 11:30 on the night of March 9, 1979. The weather was dry and clear. Traffic was very light at the time.

Mastin Lake Road is paved and consists of five lanes where it intersects Blue Spring Road, which is also paved but has only two lanes. At the intersection of the two roads, there are traffic lights. Mastin Lake Road is lit by overhanging street lamps.

Around 11:00 on the evening of the homicide, the defendant purchased two cans of mackerel, a box of aluminum foil and a loaf of bread at the Bargain Land Grocery, which is in the vicinity of Mastin Lake Road. The defendant was a regular customer at the store. The cashier, Marsha Mayes, smelled the odor of alcoholic beverages on the defendant's person. Ms. Mayes testified that the defendant was intoxicated. The weight of this witness's opinion that the defendant was drunk or intoxicated is discussed in Part III of this opinion.

Immediately prior to the collision, Mrs. June Childress heard a noise in her front yard located on Mastin Lake Road, about two blocks from Blue Spring Road. She went out on her porch and saw a Buick or Oldsmobile going up the hill toward Blue Spring Road. The car was traveling "real fast" or "pretty fast" and "fighting to keep in the road as it went over the hill." The car was "wobbling" and "trying to keep straight in the road." Mrs. Childress heard a "sort of a scrunch or sort of a thud" after the car went over the hill and "thought it might have hit something."

The evidence indicated that the defendant had driven off the road and traveled through the front of several yards on Mastin Lake Road immediately before the collision. A Huntsville police officer described the damage:

"There were two or three front yards that had been torn up, where someone had run through them. There were trees down and there was a utility pole guywire that had been torn down. A concrete cover over a drainage (ditch) had been torn up, and there was debris from a car in the yard."

The identity of the Buick driven by the defendant as being the automobile which actually did the damage to these yards was established by debris from the Buick which was found in the damaged yards.

A Chevette, a very small Chevrolet automobile, was stopped on Mastin Lake Road for a red light where the road intersects Blue Spring Road. Among the four young women who occupied this car was Pamela Allegood, the deceased.

According to the surviving passengers of the Chevette, all of whom were severely injured in the collision, they were driving on Mastin Lake Road, taking Ms. Allegood home after having been shopping. The Chevette stopped at the intersection for a red traffic light. The young women were laughing and talking among themselves. They remembered nothing after that until after the collision.

The initial impact of the large 1973 Buick driven by the defendant against the Chevette occurred while the Chevette was stopped on Mastin Lake Road. The Chevette was struck a blow from behind, on the right rear of the car, which sheared off the right side of the automobile. The Chevette was destroyed to such an extent that, in objecting to the admission of a photograph of the automobile, defense counsel cited as one of his grounds the fact that the photograph "tends to or could tend to influence the jury simply because of the extreme damage done to the car." The defendant was identified as being behind the wheel of the Buick immediately after it came to rest after the collision.

The defendant left the scene of the collision, leaving her automobile. By checking the license plate, the police discovered that the Buick was registered to the defendant's husband.

The defendant was arrested by the Huntsville Police at her home at 2401 Springfield Road, which is a short distance from the intersection where the collision occurred, at 12:30 A.M. on March 10, 1979 approximately one hour after the incident.

After the defendant admitted having been involved in an accident, she was warned of her constitutional rights and placed under arrest. She was then taken to the emergency room of the Huntsville Hospital.

The defendant was not treated at the hospital and was taken to the Huntsville City Jail. After warning the defendant of her constitutional rights, Officer William Dobbs interrogated her. In a statement which we have determined to have been voluntarily and intelligently given (as did the trial judge), the defendant related to Officer Dobbs some of her actions on the afternoon of the collision.

She told him that she had gotten off work at the Elegant Steak Room at 5:00 P.M.; that she met a man whom she didn't know; that this man was from out of town; that she purchased some beer and that they had gone to the parking lot at the Loveman's Mall to drink it. The defendant told Officer Dobbs that she had drunk three beers at the mall. At this point in the conversation the defendant "stated that she did not want to talk to (Dobbs) about anything else. She did not want her husband to find out anything." The defendant was not questioned further. The defendant did not tell Officer Dobbs what time she drank the beer or what time she left the mall.

The defense presented a different version of the accident. James Hollingsworth, the only defense witness, testified that he was driving his automobile on Blue Spring Road. As he approached the intersection of this road with Mastin Lake Road, the traffic light changed from green to yellow and he slowed to stop at the light. At that time, he noticed a Chevette traveling toward him on Blue Spring Road on the other side of the traffic light. When he was about 125 feet from the intersection, he noticed another automobile, which he saw "only a split second" before it collided with the Chevette, traveling on Mastin Lake Road. Ms. Hollingsworth testified that "as the small car came almost directly up under the light, the other car hit it." According to this witness, the Chevette entered the intersection against a red traffic light, which would have given the "other car" the green light.

In reviewing the sufficiency of circumstantial evidence the test to be applied is " 'whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. (citations omitted).' " Dolvin v. State, 391 So.2d 133, 137 (Ala.1980); Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). On review, this Court is required to consider the evidence in the light most favorable for the prosecution. McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979); Coleman v. State, 37 Ala.App. 406, 69 So.2d 481 (1954). This Court must take the evidence favorable to the prosecution as true, and accord to the State all legitimate inferences therefrom. Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. quashed, Ex parte Johnson, 378 So.2d 1173 (Ala.1979).

In Commander v. State, 374 So.2d 910 (Ala.Cr.App.), cert. quashed, 374 So.2d 921 (Ala.1978), this Court reviewed the principles involved in a conviction of second degree murder arising out of an automobile accident.

"It is settled that, in appropriate circumstances, a homicide committed by an intoxicated driver of an automobile may constitute murder in the second degree. Hyde v. State, 230 Ala. 243, 160 So. 237 (1935); Langford v. State, 354 So.2d 297 (Ala.Cr.App.), reversed, 354 So.2d 313 (Ala.1977); McGhee v. State, 333 So.2d 865 (Ala.Cr.App.1976); Wright v. State, 41 Ala.App. 684, 49 So.2d 835 (1963); Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953); Williams v. State, 30 Ala.App. 437, 7 So.2d 511 (1942); Reed v. State, 25 Ala.App. 18, 142 So. 441, cert. denied, 225 Ala. 219, 142 So. 442 (1932).

"The argument that the gross negligence or wanton misconduct of the driver of an automobile causing the death of another constitutes either murder in the first degree or manslaughter but not second degree murder was rejected by the Alabama Supreme Court in Reed v. State, 225 Ala. 219, 142 So. 441 (1932) (see dissent of Anderson, C. J.).

"Second degree murder is defined as the unlawful killing of a human being with malice, but without deliberation or premeditation. Miller v. State, 145 Ala. 677, 48 So. 47 (1906). In order to authorize a conviction for murder in the second degree for a homicide caused by the driving of an automobile, the evidence must be sufficient to warrant a finding by the jury that the accused either intentionally caused the collision or that he

'was conscious of his acts, conscious of the impending...

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