Traweek v. State

• Decision Date: 01 May 1979
• Docket Number: 6 Div. 750
• Citation: 380 So. 2d 946
• Parties: William Coy TRAWEEK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 946

380 So.2d 946

William Coy TRAWEEK v.STATE.

6 Div. 750.

Court of Criminal Appeals of Alabama.

May 1, 1979.

Rehearing Denied May 22, 1979.

Walter P. Crownover and Jack Lowther, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

This is an appeal from a conviction by a Tuscaloosa County jury, wherein the appellant was found guilty of first degree murder and sentenced to life imprisonment.

At trial, at the close of the State's case, the appellant made a motion to exclude the State's evidence on the grounds that the State had failed to prove murder in the first degree or "any of the lesser included offenses."This motion was overruled by the trial court.

Subsequent to his conviction, appellant filed a motion for a new trial, which was overruled by the trial court on May 12, 1978, after arguments on the motion had been heard.

The facts in this case are as follows:

On the morning of January 17, 1977, the appellant left Holeman's Grocery Store in Tuscaloosa County, Alabama, "around nine o'clock," with two others, "to ride around and drink some Vodka" belonging to one of the other men, "Ricky" Garner.According to Garner, the men made several stops along the road and returned to the store "about an hour and a half" later.There he and the appellant left the other man and joined another, "Buddy" Smith.

These three men, the appellant, Ricky Garner and Buddy Smith, left in Smith's car "to get some more beer," and continued riding around in the car drinking beer and vodka for another hour and a half.The men then stopped at the appellant's truck, where Smith left, and the appellant and Garner returned to the store in the truck.

From the store the two men "went up to (the deceased)(Smith's) house," where they observed him "out working on his car," and "asked him did he want to ride around and have a few drinks. . . ."According to Garner, Smith responded that he"had to go to work," and after "about six or eight minutes,"the appellant and Garner got back in appellant's truck to leave.

Garner testified that, at that point, the appellant"spun some backwards" in his truck, causing "a little" gravel to be thrown by the tires of the truck, as they were leaving."Pretty soon"the appellant and Garner were overtaken on the road by James Smith, who "pulled in right in front of (appellant's) truck and motioned for (them) to slow down."

Garner stated that the two vehicles then pulled off the road and the men got out.According to Garner, "(t)hey was arguing and James (Smith) was asking him (the appellant) why was he trying to tear his driveway up or something."Garner stated that he saw no weapon in the hand of either man when the argument began but that later he noticed that the appellant"had a knife" and was "holding it keeping James from jumping on him or something."

At one point during the argument, Garner interrupted the men to talk to Smith about an argument he had had with the deceased the previous week and stated that "it was a fine time to settle it. . . ."According to Garner, Smith had responded that "he was just drunk. . . . and he wanted to make friends. . . ."Garner recalled that he thought he then shook hands with James Smith and testified that he had said, "I'm not on either side, I am out of it, I won't take up for either one."

After the above exchange between himself and Smith, Garner stated that he"went back and leaned up against the corner of the (appellant's) truck."At that time, Garner continued, Smith "moved on up toward Coy. . . . like he was fixing to jump on him."The appellant then obtained his shotgun from his truck and shot Smith.

The appellant's knife was the only weapon seen by the eyewitness, Ricky Garner, during the argument between appellant and the deceased, until the appellant, according to Garner, "run to his truck and got his gun."

According to Garner's testimony, the appellant"fired three times."He"shot (James Smith) twice real quick," but that there was "time enough for (Garner) to go on the other side of the truck" before the third shot was fired.

Garner stated that, after the third shot, "I went through the woods up to Hall Skelton's and called the ambulance."He testified further, that when he returned, the appellant was still at the scene, and that several people, including the homicide investigators, had arrived.He also stated that neither of the vehicles had been moved from its original position, nor had the body of James Smith been moved, and that "everything was the same as it was."

On cross-examination Garner stated that he"did not remember" how much he had had to drink on the date in question.He agreed that the appellant had told him "(h)e had lost some deer dogs" and that he and Traweek "were going to ride around and kind of look for them. . . ."He also stated that the original conversation with James Smith outside his home had been friendly, although Garner had not expected it to be.

Finally, Garner testified that James Smith was "cussing Coy, giving him down the road," and that Smith was "pushing himself" on the appellant.He stated that it "seemed like"the appellant was trying to leave the scene of the argument.However, at one point, Garner also said that "James (the deceased) kept trying to get him (the appellant) to put the knife up."

On re-direct examination, Garner repeated that he had not seen a weapon in the hands of the deceased during the argument.He also stated that the deceased had not followed the appellant back to his truck when Traweek went to the truck to get his shotgun.

The State then presented the testimony of "Buddy" Smith, who stated that he had been drinking with the appellant and Ricky Garner on the day of the shooting and had left the other two men to go home.Smith later encountered the appellant and several other men at the scene of the shooting, where the appellant stated to him, "I killed the S.O.B."Smith indicated that he had not coerced the remark from appellant, nor had he promised appellant any reward before the statement was made.

Smith further testified that he had taken appellant's shotgun from him to "check it," and had noticed that there was no shell in the chamber at the time he took the gun.Smith testified that he then carried the shotgun with him when he went to "a house located across the road" from the scene to call the sheriff's department.Smith returned with the gun and "laid the shotgun by the rear wheel of James Smith's (the deceased's) pickup."

On cross-examination, Smith stated that he had found a pistol "wrapped up in a rag. . . . about the middle of the seat" of the deceased's truck and that he moved the pistol prior to informing the homicide investigators of it, but that he did not "carry it around" with him.Smith also testified that, when he first arrived at the scene, the appellant and several other people were present, and that he"walked up to the body. . . .(and) checked it for a pulse," but did not find one.

Included in the State's case was testimony from two State toxicologists, one of whom performed the autopsy on deceased's body, and three of the homicide investigators for Tuscaloosa County who had conducted the investigation of the shooting.These witnesses served to establish that, in the opinion of the toxicologist who performed the autopsy, "death in this case resulted because of damage to the lungs and heart as a result of a gunshot load delivered to the right chest."

The witnesses for the State also established the chain of custody of those State's exhibits introduced into evidence, over defense objections, including photographs of the deceased illustrating the three wounds sustained by him.Also introduced over defense objections were buckshot pellets taken from deceased's wounds, which were largely "consistent with . . . number one buckshot," and three spent shotgun shells found in the vicinity of the deceased's body.These shells, in the opinion of the State Toxicologist, had been fired from the Sears twelve-gauge shotgun also found at the scene.

Testimony by the toxicologist, who performed laboratory tests on the evidence gathered at the scene, indicated that, in his opinion, "the muzzle of the shotgun was no closer than eight feet and no further than twelve feet from the (deceased's) shirt at the time of the discharge," and that there was no "presence of ethyl alcohol in the blood specimen" taken from the deceased.However, there was no testimony given by the State as to the measurements between appellant and the deceased at the scene, or anything other than approximate distances given by the eyewitness, Ricky Garner, and a homicide investigator who had "stepped off" the distances between the body and the vehicles.

Finally, testimony by one of the Tuscaloosa County homicide investigators indicated that he had found a "hunting knife," with the blade extended, "on the front seat of the defendant's truck."The officer also stated that he had taken both of the guns into custody at the scene, and that the shotgun was loaded with "three live-shot shells" at the time he found it "lying at the rear of the deceased's truck next to the left rear wheel," and that it was a "twelve-gauge pump shotgun."

Testimony of one of the homicide investigators, who was familiar with firearms, revealed that the shotgun had an odor of gunpowder about it, indicating that it had been fired recently.One officer stated that there was "one spent round" in the deceased's revolver, but no evidence of "any odor or presence of any burned gunpowder," which indicated that, in his opinion, the gun had not been recently fired.

Taken together, the testimony of the two State toxicologists and the three investigators served to establish a chain of custody of the physical evidence introduced by the State sufficient to connect them with the appellant or the scene and to support their admission.Also,...