Travis v. State

• Decision Date: 20 January 1981
• Docket Number: 1 Div. 143
• Citation: 397 So.2d 256
• Parties: Jimmy Ray TRAVIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 256

397 So.2d 256

Jimmy Ray TRAVIS v. STATE.

1 Div. 143.

Court of Criminal Appeals of Alabama.

Jan. 20, 1981.

As Corrected on Denial of Rehearing Feb. 24, 1981.

Richard L. Thiry, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.

TYSON, Judge.

Jimmy Ray Travis was indicted by the Mobile County grand jury for the first degree murder of Johnny Dean. Trial was had with the jury finding him guilty of first degree manslaughter. The jury set his sentences at ten years imprisonment. From that conviction he now appeals.

Mrs. Diane Condra testified that around 8:00 a. m. on June 18, 1979, she went to the victim's home to visit her aunt. She stated that she was in the kitchen with her aunt and appellant's stepdaughter when the appellant arrived. He entered the kitchen and told his stepdaughter to get in his car which she refused to do. Mrs. Condra stated that the appellant grabbed his stepdaughter and led her to the car which she voluntarily entered. She testified that she tried to talk to the appellant who replied that she should keep her mouth shut and stay out of his family business. As the appellant was preparing to back down the victim's driveway. Mrs. Condra stated that her aunt called for the victim who had been in his garden working and was unaware of the incident at the house. She stated that she could not initially see the victim from where she was standing which was outside the house and near the back door. Mrs. Condra testified that the appellant, who was backing down the driveway at a high rate of speed, hit the victim, who was running toward the driveway, near the intersection of his driveway and the driveway of a small house owned by the victim which was located some distance in front of the victim's house and closer to the road. Mrs. Condra testified that the front end of the appellant's car turned to hit the victim with it carrying him to the road. Mrs. Condra looked to the garden where her child had been with the victim and after returning her attention to the victim, saw him in the road near his driveway entrance and a drainage ditch running parallel to the road waving his arms at the appellant, who, by this time, had backed into the road. She testified that the appellant's car swerved into the victim striking him a second time. Mrs. Condra left to call the police and upon returning saw the victim lying in the drainage ditch near his driveway entrance with the appellant and another man attempting to revive him. Mrs. Condra testified that she failed to tell the police about the first impact as she had her child on her mind and merely forgot. She stated that she did not know how far the appellant backed up the road and did not see the victim throw anything at the appellant or his car. Mrs. Condra testified that while she was viewing the body she asked the appellant "was it worth it" to which he told her to keep her mouth shut. Several photographs of the scene were identified by Mrs. Condra and properly admitted into evidence.

On cross-examination, Mrs. Condra testified that from where she was standing, she could see the driveway entrance, road, and the location of the victim relative to such. She stated that once the appellant's car backed into the road she lost sight of it until it returned to the area of the driveway entrance. Mrs. Condra testified that the victim, when hit the second time was standing somewhere between the middle of the road and the drainage ditch. Mrs. Condra first saw the victim as he ran from his garden to the driveway; a path which carried him in front of the small house. She stated that at or near the point that the driveway to the small house adjoined the driveway of the victim's residence, the appellant's car turned or swerved.

On redirect examination, Mrs. Condra pointed out that her vantage point was higher in elevation than the road and therefore could tell the position of someone standing in the road.

Mrs. Jeanette Lane testified that she is the stepdaughter of the appellant as well as the grandniece and niece of Mrs. Frances Dean and Mrs. Diane Condra, respectively. Mrs. Lane was not married at the time of the instant incident. She testified that around 7:30 a. m. on June 18, 1979, she had gone to her grandaunt's due to domestic problems at home. She stated that around 8:30 or 9:00 a. m. the appellant came to the victim's house to carry her home. Mrs. Lane testified that the appellant was "mad", "angry", and "upset", and when leaving the victim's house backed down the driveway at a high rate of speed. Mrs. Lane first saw the victim walking across the driveway running toward the road with something resembling a rock in his hand. Mrs. Lane testified that the appellant did not hit the victim in the driveway as testified to by Mrs. Condra but rather proceeded out to the road. She stated the appellant's car momentarily stopped then sped forward in the direction of the victim. She stated that the car was in the middle of the road. Mrs. Lane testified that the car was swerving and the tires were spinning as it moved forward. She stated the victim had his arm cocked as if to throw something and, apparently, in response to such, the appellant covered his face with his arm. Mrs. Lane did not see the impact as she had closed her eyes and turned her head although she heard a "little bump." She stated that she told the appellant he had hit the victim and he immediately stopped the car. Both of them got out of the car and went to help the victim. Mrs. Lane testified that the appellant did not swerve or turn the car toward the victim although in her statement taken at the scene shortly after the incident she made statements to the contrary but explained that at that time she was mad and upset at the appellant. She testified that she could clearly see the victim once the car was in the road.

On cross-examination, Mrs. Lane stated that she turned her head or closed her eyes prior to the impact because she knew something was going to happen.

Mr. Thomas Long testified that on June 18, 1979, he was a neighbor of the victim's. On that day, he was in his yard and saw the appellant's car back down the road, heard it shift gears, and saw it proceed forward at a high rate of speed. Mr. Long stated that he heard a loud impact and afterwards got into his car and drove to the scene of the incident wherein he found the victim lying near a drainage ditch with the appellant beside him. He stated that the appellant's car had stopped in the middle of the road. Mr. Long attempted to aid the victim. He stated that the appellant asked several times for help and stated many times that the victim would be all right.

Mrs. Ethel Davis testified that on June 18, 1979, she was the victim's next door neighbor and was in her yard when she saw the appellant's car back rapidly down the road, shift gears, and rapidly proceed forward. She stated that she heard a loud collision and walked to the road wherein she saw Mrs. Dean and Condra and the appellant. She did not see the victim or go to the scene of the incident. She testified that the incident occurred in Mobile County.

Mrs. Frances Dean testified to the June 18, 1979, family incident between her grandniece and the appellant. She stated that the appellant told his stepdaughter that he would "beat the hell out of her" if she did not go with him. Mrs. Dean stated that she called for her husband out of fear of what might happen to her grandniece. Mrs. Dean testified to the two impacts suffered by her husband as previously testified to by Mrs. Condra.

On cross-examination, Mrs. Dean testified that her husband had no idea of what had occurred at their home prior to her calling him. She stated that from her position outside the house she could see her husband in the garden. She stated that he did not run but walked fast toward the driveway. She stated that when her husband was initially hit, the appellant's car's front end turned toward him. Mrs. Dean testified that after the initial impact she moved closer to the road and at the time of the second impact was near the point of initial impact. She stated that she could see the appellant's car during the entire incident although a cluster of trees and underbrush were near the side of the road wherein the appellant had backed his car. She testified that the trees were not so dense that she could not see through them. Mrs. Dean testified that her husband did not throw anything at the appellant's car and, when he was hit the second time, had his hands raised attempting to stop the appellant.

Mobile Sheriff's Department Detective Willie Estes testified that around 10:30 a. m. on June 18, 1979, he arrived on the scene of the instant incident to conduct the investigation. He stated that when he arrived both the victim and the appellants' car had been moved. He identified several photographs of the appellants' car which were properly admitted into evidence.

Detective Estes testified that after giving the appellant his Miranda rights he took a statement from him which was tape recorded. He produced a transcript of the statement and, using such to refresh his recollection, testified to the contents of the appellant's statement. Detective Estes stated that the appellant was not threatened or coerced into making a statement and no promise was made in exchange for such. He stated that the appellant was not drunk and understood his questions.

Detective Estes testified that the appellant told him about the events concerning his stepdaughter and himself at the victim's house. The appellant stated that he saw the victim in the road before he hit him and swerved in an attempt to miss him, but did not know that he had struck him. He stated that the victim was attempting to throw something at his car and when his stepdaughter told him that he had struck the victim, he stopped his car, got out, and went to him.

Detective Estes testified that...