Commonwealth v. Graham

• Decision Date: 04 October 2019
• Docket Number: NO. 2017-CA-001831-MR,2017-CA-001831-MR
• Citation: Commonwealth v. Graham, 586 S.W.3d 754 (Ky. Ct. App. 2019)
• Parties: COMMONWEALTH of Kentucky, Appellant v. Norman GRAHAM, Appellee
• Court: Kentucky Court of Appeals

586 S.W.3d 754

COMMONWEALTH of Kentucky, Appellant

v.Norman GRAHAM, Appellee

NO. 2017-CA-001831-MR

Court of Appeals of Kentucky.

OCTOBER 4, 2019; 10:00 A.M.

BRIEFS FOR APPELLANT: Andy Beshear, Attorney General of Kentucky, Thomas A. Van De Rostyne, Assistant Attorney General, Frankfort, Kentucky.

BRIEF FOR APPELLEE: Melanie A. Foote, Frankfort, Kentucky, Amy Robinson Staples, Shelbyville, Kentucky.

BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES.

OPINION

MAZE, JUDGE:

The Commonwealth appeals from the Todd Circuit Court’s order granting Norman Graham’s motion to set aside, correct, or amend judgment pursuant to CR ¹ 60.02, entered October 5, 2017.After careful consideration, we affirm the circuit court’s order granting a new trial.

I.Background

Further details of this case may be found in the Kentucky Supreme Court’s opinion on direct appeal.Graham v. Commonwealth , 319 S.W.3d 331(Ky.2010).At some point during the evening hours extending from June 29 to June 30, 1980, Kay Williams² was raped and murdered in her boyfriend’s trailer at Tiny Town Trailer Park, in Todd County, Kentucky.Kay’s boyfriend, Norman Graham, alleged he had been out drinking with his ex-wife at a bar the previous evening and was not home when Kay was attacked.According to Graham, he fell asleep in his vehicle in the bar parking lot, woke up after 4:00 a.m., and drove back to his trailer, where he discovered Kay’s body.Her hands and feet had been bound with bootlaces, her throat had been cut, and she had been stabbed in the chest approximately twenty-five times.Her jumpsuit had been cut or torn away from her body, and she was positioned in the nude on the bed with her legs splayed out.Upon discovering the body, Graham alerted Kay’s sister, who lived in the neighboring trailer, and they contacted the police.Investigators discovered semen inside Kay’s vagina and on her jumpsuit, but forensic science at the time could not determine who the contributor was.Graham acknowledged he and Kay had engaged in sexual relations on the day leading up to the murder.

The Commonwealth prosecuted Graham for Kay’s murder in 1981, but the jury could not agree on a verdict, resulting in a mistrial.The Commonwealth elected to dismiss the indictment without prejudice.The case remained largely dormant for over twenty years.The case became active again when, in 2003, the Commonwealth reexamined the biological evidence using DNA testing.The semen recovered at the scene matched Graham’s DNA to a statistical probability of one in 506 trillion individuals.Other suspects were excluded as contributors to the recovered DNA.In 2007, a Todd County grand jury indicted Graham for first-degree rape as well as murder.Graham was convicted on both counts at jury trial.On December 30, 2008, the trial court sentenced Graham to a concurrent term of forty years' imprisonment.

Within a few months of conviction, Graham moved for a new trial pursuant to CR 60.02 and RCr ³ 10.06.As support, the motion alleged juror misconduct and the defense’s receipt of sworn statements from witnesses who had not previously testified.The witness statements included two worth mentioning here.The first was Tina Rigsby, who was married to Roy Wayne Dean from approximately 1981 to 1982.Over the years, Dean had become a leading candidate as an alleged alternative perpetrator in Kay’s murder.In 1984, Dean committed two separate and unrelated murders of women in the Todd County area.He is currently serving out a life sentence with the Kentucky Department of Corrections.Tina, who would later testify in the evidentiary hearing in the current matter, gave Graham’s defense an affidavit relating the following incident:

Roy, for some unexplained reason, told me one day about the murder of a young lady and described it in, what I consider, great detail.I am in the medical profession, so I have knowledge of the body and trauma to it.He described the scene to me.He said the young girl was lying sprawled out on a bed with blood splattered all over her and the walls and the bed.He said she was nude.He said she was stabbed 30 to 32 times in the chest area.When I asked how he knew this, his only explanation was, well, he saw the crime scene.I believe the only explanation was that Roy Dean was the perpetrator of the crime and was at the scene and created the scene which he described.Based upon Roy Dean’s statements to me, I strongly believe he committed the crimes of which Norm Graham stands accused.

The second statement was from Graham’s ex-wife, Sandra Burnette.As previously mentioned, Graham’s alibi for the night of the murder was that he was spending time with his ex-wife at a bar.However, she was not called to testify in either trial.In her statement, Sandra asserts that, if she had been called as a witness, she would have testified to being with Graham until she left him in the bar parking lot in Clarksville, Tennessee, at approximately 3:00 to 4:00 a.m.Later, in a deposition she gave in 2008, Sandra said the drive back to Tiny Town from the bar would have taken approximately another thirty minutes, even if Graham had left immediately after she did.Based on her personal experience with him, Sandra did not believe Graham would commit this crime, and she further believed Graham could not have done so , because he was with her that night.She also expressed her willingness to testify as to these matters.

The trial court denied Graham’s motion for a new trial, finding the juror misconduct did not prejudice Graham to such an extent that he did not receive a fair trial.The trial court also found Tina’s statement had little probative value, while Sandra’s statement could have been offered at Graham’s trial if the defense had exercised reasonable diligence in doing so.In addition, the trial court found Sandra’s statement was "inconsistent with the statement she gave officers on December 5, 1980, wherein she stated ... she parted company with the defendant in Clarksville, Tennessee at an unknown time in the early hours of the date in question."Ultimately, the trial court held Graham "failed to demonstrate that if Sandra Burnette were permitted to testify at a new trial, there is a reasonable certainty that the result would be different."

Graham’s conviction was upheld in his direct appeal to the Kentucky Supreme Court.Graham , 319 S.W.3d 331.He subsequently moved the trial court for relief pursuant to RCr 11.42, asserting ineffective assistance of counsel.The trial court denied the RCr 11.42 motion, and we upheld the trial court’s ruling on appeal.Graham v. Commonwealth , No. 2012-CA-002181-MR, 2015 WL 7822146(Ky. App.Dec. 4, 2015), as modified on denial of reh'g(Ky. App. June 24, 2016), disc. rev. denied(Ky. Oct. 13, 2016).Of note, our previous opinion disagreed with the trial court’s assessment that there was no reason to suspect Dean was a viable suspect in Kay’s murder.We opined that Kay’s murder bore a significant resemblance to the murders for which Dean is currently incarcerated:

Dean is a suspected serial killer who lived in the same trailer park at the time of the victim’s murder.There were numerous similarities between the murders, which the detective in the case noted in his Uniform Offense Report.These similarities include: overkill, rape, bound wrists, similar positions, and nudity of the victims.The only dissimilarity was the weapon used to murder the victims.Graham’s contention that Roy Dean should have been offered as an alternate suspect is clearly not "without a minimum factual basis."

Id. at *4.Nevertheless, we upheld the trial court’s ruling, stating that "[e]ven if trial counsel’s failure to present Roy Wayne Dean as an alternative suspect was deficient, given that none of Dean’s DNA was ever linked to the crime scene, we cannot say that it was prejudicial."Id.

Graham subsequently filed two concurrent CR 60.02 motions, and these motions were heard by the assigned special judge.Graham’s first motion, filed on August 1, 2016, alleged his convictions for rape and murder should be vacated because the Commonwealth had dismissed the rape charge against him with prejudice in 1981, so it was erroneous to charge and convict him of that offense in his 2008 trial.Before the trial court could rule on the motion, however, Graham made a separate motion for relief under CR 60.02 and RCr 10.02.This second motion asserted new evidence had surfaced against Dean as the actual perpetrator of the crime, in the form of two eyewitnesses who saw Dean outside Graham’s trailer on the night of the murder.The witnesses, Renee Dean and Barbara Keaton, were young teenagers at the time of the murder and had not been questioned by police during the investigation.Although the details of their statements differ, as discussed below, both women assert they heard a woman’s scream that night and then saw Dean running from the area behind Graham’s trailer.This Court is currently holding Graham’s first motion in abeyance pending the outcome of his second motion in the casesub judice.

The trial court held a two-day evidentiary hearing, on April 24 and June 12, 2017, to receive Graham’s new evidence.The trial court also considered Dean’s deposition, which was taken on June 27, 2017.Finally, when counsel began to repeat facts and issues which were raised previously, the trial court kept the hearing focused on the new testimony by informing counselhe had examined the history and the record in this case in great detail.As a result, the trial court was very well prepared to thoroughly consider the matter.

In the April 24, 2017, evidentiary hearing, the first witness of note to testify was Dean’s former spouse, Tina Rigsby.Tina’s testimony provides valuable background on Dean as a viable alleged alternative perpetrator for Kay’s murder.Tina testified as to the incident, related supra , wherein Dean described the scene of Kay’s murder as though he had personal knowledge of it.Tina admitted she was...