Graham v. Commonwealth Of Ky., No. 2009-SC-000069-MR.

• Decision Date: 10 September 2010
• Docket Number: No. 2009-SC-000069-MR.
• Citation: 319 S.W.3d 331
• Parties: Norman GRAHAM, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: Supreme Court of Kentucky

319 S.W.3d 331

Norman GRAHAM, Appellant,v.COMMONWEALTH of Kentucky, Appellee.

No. 2009-SC-000069-MR.

Supreme Court of Kentucky.

Aug. 26, 2010.

As Modified Sept. 10, 2010.

COPYRIGHT MATERIAL OMITTED

Fred Greene, Russellville, KY, Counsel for Appellant.

Jack Conway, Attorney General, Christian Kenneth Ray Miller, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice NOBLE.

A Todd County jury convicted AppellantNorman Graham of murder and first-degree rape.He seeks reversal of his convictions on four grounds: the lack of a Daubert hearing on DNA evidence; juror misconduct; prosecutorial misconduct; and undue delay in his prosecution.Finding no error, this Court affirms the Todd Circuit Court.

I.Background

The victim in this case, Kay Williams, was raped and murdered 30 years ago on June 30, 1980.In the months before the rape and murder, Appellant had begun an intimate relationship with Williams.He met her at the Tiny Town truck stop, where she waitressed.The pair started dating and she would stay most nights at Appellant's trailer.

Appellant spent the day before Williams's death with her.They woke up that morning in Appellant's trailer.According to Appellant, they had sexual relations before going to Williams's grandmother's house for lunch with her family.What occurred after this point is disputed.

Appellant testified they immediately returned to his trailer where Williams proceeded to take a nap.He maintained that he left the trailer while she napped and that he never saw her alive again.

On the other hand, Regina Alexander, Kay Williams's sister, testified that, after lunch at the grandmother's house, she and Williams both drove from their grandmother's house to their parents' house, where both she and Williams lived.She testified that once there, Williams informed her that Williams and Appellant were having problems and their relationship would probably soon end.According to Regina, Kay Williams then drove their mother to the home of another sister, Judy Stokley, who happened to live next to Appellant's trailer.Stokley also testified that Williams dropped their mother off there and that it was the final time she saw Williams alive.

Appellant admitted that after he and Williams both returned to the trailer, he left again that evening to meet his ex-wife at the Red Carpet Inn.He further admitted that his ex-wife wore a strong perfume that day.The Commonwealth used that admission in closing argument as an explanation for a theorized fight breaking out between Appellant and Williams when he returned to the trailer, ultimately consummating in rape and murder.Appellant, however, denied having returned home that night.

The next day, June 30, after being alerted by Appellant, police found Williams naked and dead in Appellant's bed inside his trailer.Her hands and feet were bound together, her jumpsuit had been cut off, and she had been stabbed 25 times in the chest.Investigators also discovered sperm inside her vagina and on her jumpsuit.However, the examiner who performed the autopsy explained that, at the time, “no doctor in the world [could] tell you what male produced these sperm.We're not that scientific yet.”

Soon thereafter, in 1981, the Commonwealth prosecuted Appellant for the murder, but the trial resulted in mistrial from a hung jury.Perhaps because of weaknesses in its case, particularly, the lack of physical evidence connecting Appellant to the crime, the Commonwealth chose not to retry Appellant at that time.Thus, the Commonwealth had the indictment dismissed without prejudice and the case was closed.

In 2003, the sperm found on Williams was reexamined using modern DNA testing.It turned out to match Appellant's DNA to a statistical probability of 1 in 506 trillion.After excluding other suspects through DNA analysis, the Commonwealth sought to reindict Appellant, this time for both rape and murder.At the new trial in Todd Circuit Court, the Commonwealth presented the DNA evidence that the sperm found on Williams's person derived from Appellant.The jury convicted Appellant of both first-degree rape and murder.On December 30, 2008, the trial court entered a final judgment of conviction and, following the jury's recommendation, sentenced Appellant to 40 years on each count, to run concurrently.

Sometime after trial, Appellant became aware of circumstances giving rise to a possible claim of jury misconduct.He first raised this claim on March 3, 2009, in a motion for a new trial presented to the circuit court.After conducting an extensive evidentiary hearing on the alleged juror misconduct, the trial court denied the motion for a new trial on April 30.Appellant now contests this ruling, as well as the other issues discussed herein, as a matter of right.Ky. Const. § 110(2)(b).

II.Analysis

Appellant contests his convictions on four grounds.He first cites the trial court's failure to conduct a Daubert hearing on the DNA analysis as grounds for reversal.SeeDaubert v. Merrell Dow Pharms., Inc.,509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469(1993).Second and third, Appellant claims juror and prosecutorial misconduct.Finally, Appellant urges that the nearly 28 year lapse between the crime and his conviction violates his due process protection against undue delay in prosecution.

A Daubert Hearing

Prior to trial, Appellant asked for a Daubert hearing to determine the validity of the DNA analysis.The Commonwealth countered that a Daubert hearing is unnecessary for DNA analysis and that the court should instead take judicial notice of its reliability.The court found that DNA analysis is indeed reliable and, therefore, declined to conduct a Daubert hearing.

The method used to analyze Appellant's DNA is called Polymerase Chain Reaction (“PCR”) analysis.As this Court noted over ten years ago, “DNA analysis using the PCR method has ... been recognized as valid and scientifically reliable.”Fugate v. Commonwealth,993 S.W.2d 931, 936(Ky.1999).“It is clear that the PCR method of DNA analysis has been subjected to extensive peer review.”Id.Due to scholarly review and acceptance, the Court held in Fugate that in that trial and in future cases, “DNA comparison analysis using the ... PCR method [ ] is admissible without being the subject of a pretrial Daubert hearing.”Id. at 937-38.Thus, the trial court properly declined a Daubert hearing, instead allowing Appellant to try to undermine the credibility of the DNA evidence at trial.Seeid. at 938.(“The opposing party could question the handling of the samples, the chain of custody, the accuracy of the procedures, the quality of training of the particular person or persons who conducted the actual tests and whatever other challenge could be made to the credibility of the evidence.”).

In fact, Appellant's primary allegation of fault with the DNA evidence related not to the method of analyzing the DNA, but instead to the source of the DNA.Essentially, Appellant questioned the authenticity of the DNA alleged to have been found on Williams's body due to the length of time between the discovery of the body and trial.Of course, the opportunity for the Commonwealth to authenticate the DNA occurs not at a Daubert hearing, but at trial, where the chain of custody is proven before the evidence is introduced.The Commonwealth was indeed able to authenticate the DNA at trial and it subsequently was appropriately admitted into evidence.

B.Juror Misconduct

Evidence of possible juror misconduct only came to light through information provided by certain individuals after the entry of final judgment and after Appellant's initial notice of appeal.The issue was, therefore, not raised at trial, but instead for the first time in a motion for a new trial.When that motion was denied, Appellant filed a supplemental notice of appeal, addressing the juror misconduct issue to this Court.

The Commonwealth urges that this issue is not properly before the Court because the supplemental notice of appeal-raising the juror misconduct issue-was never consolidated with Appellant's initial appeal.The initial notice of appeal applied to the original judgment of conviction and sentence.The supplemental notice of appeal applied to the order denying a new trial due to newly discovered evidence.However, it would waste judicial resources for this Court to resolve these two matters separately.As the Commonwealth concedes, this Court has the power to join them sua sponte into a single appeal and hereby does so.

Turning to the merits of the juror misconduct issue, two types of problems arise, both concerning the juror Charles Nabb: (1) Nabb's relationship with the victim and her family and (2) Nabb's interactions with the family and another juror during trial.

1.Relationship with the Family

Prior to trial, counsel for both sides engaged in individual voir dire with Nabb, just as with other jurors.In that conversation, Nabb was asked whether he“kn[ew] the [victim's] family.”Nabb simply responded, “No.”

In the months after trial, Teddy Robertson contacted Appellant's counsel and disclosed information about Nabb's past relationship with the victim and her family, suggesting possible bias.Robertson is the only person to have come forward describing any such relationship.Robertson described at a post-trial hearing how he himself was very close with the victim's family and would spend significant amounts of time at their house.Robertson also claims to have worked for Nabb for approximately twenty years and that every other day, Nabb would pick him up from the victim's family's home.According to Robertson, when Nabb came by to pick Robertson up, he would frequently converse with the victim's mother, but Robertson never heard what they were talking about.

Robertson further testified that Nabb “may” have dated Kay Williams, but he failed to provide any substantial...