Graham v. State

• Decision Date: 12 July 2019
• Docket Number: CR-15-0201
• Citation: 299 So.3d 273
• Parties: Lisa Leane GRAHAM v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

299 So.3d 273

Lisa Leane GRAHAM

v.STATE of Alabama

CR-15-0201

Court of Criminal Appeals of Alabama.

July 12, 2019

Rehearing Denied September 13, 2019

Certiorari Denied January 17, 2020

Alabama Supreme Court 1181043

Charlotte R. Morrison and Claudia B. Flores, Montgomery; Robert G. Poole, Opelika; and Margaret Y. Brown, Auburn, for appellant.

Luther Strange and Steve Marshall, attys. gen., and Stephen M. Frisby (withdrew 01/11/2019) and Audrey K. Jordan, asst. attys. gen., for appellee.

KELLUM, Judge.

Lisa Leane Graham was convicted of hiring Kenneth Walton to murder her daughter, Stephanie "Shea" Graham, for "a pecuniary or other valuable consideration or pursuant to a contract or for hire," a murder defined as capital by § 13A-5-40(a)(7), Ala. Code 1975. Graham's first trial ended in a mistrial, and she was tried a second time and convicted of capital murder.

The State's evidence tended to show that on July 5, 2007, Earlic Dinkins was driving on Highway 165 near Bowden Road when he discovered the partially nude body of Shea Graham lying on the side of the road. Dinkins telephoned emergency 911, and shortly thereafter Russell County sheriff's deputies arrived on the scene. Dr. Steven Boudreau, a pathologist with the Alabama Department of Forensic Sciences, testified that Shea died of multiple gunshot wounds

. Dr. Boudreau testified:

"There was a close range gunshot wound

which had entered the right eye and obliterated the right eye and orbit. The bullet went through the head and exited the back of the head. There was another gunshot wound to the head at the back right side of the head which entered the skull and exited over on the left side of the head. There was, in addition, a gunshot wound in the chest ... and exited the back. It perforated -– the lung and the top part of the liver on its way through. There were two gunshot wounds in the abdomen. One in the upper right abdomen, which lacerated the liver again and then exited the back. The second gunshot wound to the abdomen ... just went through the skin on the right-hand side."

(R. 3075.) Both shots to Shea's head were fatal wounds

, Dr. Boudreau said. (R. 3078.)

Kevin Graham, Graham's husband, testified that when he learned of Shea's death he informed police that Kenneth Walton was probably responsible because, he said, Walton had told him on two occasions that Graham had asked Walton to kill Shea.¹ Kevin also testified that he had given Graham a gun and that she kept that gun in the console of her vehicle.

Walton testified that Graham had hired him to kill Shea. Walton said that he had previously worked for the Grahams in their construction business and that Graham first approached him about killing her daughter when he was in prison in August 2004. On multiple occasions, after that date, Walton said, Graham asked him to kill Shea. On July 5, 2007, Walton testified, Graham telephoned him and asked him to meet her at a local library. At the library, Walton said, Graham asked him if he was ready to kill Shea. He testified:

"[Prosecutor]: Can you tell me what else happened at the library other than talking with Lisa Graham?

"[Walton]: Yes, sir. On that particular day, I talked to her, she said was I ready, I said yes. She said well, here is my keys. She gave me the keys [to her truck]. I get the keys. I go to a truck.

"[Prosecutor]: What kind of truck did she have?

"[Walton]: She has a blue Avalanche.

"[Prosecutor]: What did you do when you got to the truck?

"[Walton]: I unlocked the passenger door. I opened the console. I retrieved a nine millimeter handgun, gray and silver, and I took the gun. Put it in my truck."

(R. 2919-20.)

Walton further testified regarding the events of July 5 and July 6, 2007. In the evening of July 5, he received a telephone call from Shea during which she asked him to meet her at a Race Track convenience store on Victory Drive in Columbus, Georgia. Shea asked for help in getting an automobile. At the store, Shea got into Walton's truck, and they drove toward Eufaula, Alabama. They stopped at the end of Highway 165 near Bowden Road so that Shea could go to the bathroom on the side of the road. Walton retrieved the gun while Shea was behind one of the truck doors using the bathroom. He shot Shea two times in her head and then four times in her chest. As he was driving away in his truck, he ran over Shea's right arm. (R. 2928.)

The next morning Walton checked his voice-mail messages and discovered a message from Graham. She asked if he had seen Shea, and they arranged to meet. Graham asked Walton for the gun, and he retrieved it from his truck. Graham told him to put it where he had "gotten it." (R. 2939.) Warren Thompson, Graham's grandfather, came up to them as they were talking, and Thompson asked them if they had seen Shea. Walton told Graham that the gun was dirty and needed to be cleaned. Walton then got the gun and gave it to Thompson so that Thompson could clean it. Walton further testified:

"[Prosecutor]: Did she -– other than asking you to do her a favor, did -– did she in any way offer you anything in return for doing that?

"[Walton]: She told me I owed her this favor because I had been covering up for her husband seeing my cousin.

"[Prosecutor]: What -– what -– what did that mean to you, that you had been covering up for her husband and your cousin?

"[Walton]: It meant I had been hiding stuff from her and she wanted me to do her a favor by killing her daughter in return.

"[Prosecutor]: Anything else?

"[Walton]: I shot and killed her.

"[Prosecutor]: Oh. Well, my question is, did she promise you or offer you anything else?

"....

"[Prosecutor]: Did you expect anything else?

"[Walton]: Yes, sir. She never said what she was going to give me, but she said if I needed anything, just call her."

(R. 2945-47.) Forensic tests showed that the bullets that killed Shea were fired from the gun that Walton got from Graham.

Walton testified that, while police were questioning him, he suggested that he telephone Graham so the police could monitor the call. (C. 2948.) In that conversation, Walton asked if Graham could give him bail money and Graham asked the amount of his bail.

Stephen Hemilburger testified that he lived across the street from the Grahams at the time of Shea's murder. According to Hemilburger, "Lisa [told him that] she was tired of the little bitch [Shea], and that -– she said that she would pay [him] five thousand dollars if [he] would kill her. And [he] told her she was nuts." (R. 3480.) Hemilburger said that he thought Graham was kidding "until she reiterated that she wanted the little bitch dead; that she was tired of spending money for attorney's fees on her." (R. 3481.)

Rachel Cunningham testified that she lived about two blocks from the Grahams and visited their house on numerous occasions. Graham frequently spoke of Shea being killed, she said. Several weeks before Shea was murdered, Cunningham overheard a conversation between Graham and Walton. Cunningham testified: "I heard a conversation between Mr. Walton and Ms. Graham talking about how to kill Shea Graham, what they needed to do, what would be the best clean up of that, how fast it would be, and how easy they would be able to get it done." (R. 3448.)

The jury found Graham guilty of capital murder as set out in § 13A-5-40(a)(7), Ala. Code 1975. A presentence report was prepared, and a sentencing hearing was held before the same jury that convicted Graham. The jury recommended, by a vote of 10 to 2, that Graham be sentenced to death. The Russell Circuit Court found that the murder was committed for pecuniary gain, an aggravating circumstance listed in § 13A-5-49(6), Ala. Code 1975, and sentenced Graham to death.² This appeal, which is automatic in a case involving the death penalty, followed. See § 13A-5-55, Ala. Code 1975.

Standard of Review

Because Graham faces the ultimate penalty -- death -- this Court must search the record of the lower court proceedings for "plain error." Rule 45A, Ala. R. App. P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

In discussing the scope of Rule 45A, the Alabama Supreme Court has stated:

" ‘ "To rise to the level of plain error, the claimed error must not only seriously affect a defendant's ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury's deliberations." ’ Ex parte Bryant, 951 So. 2d 724, 727 (Ala. 2002) (quoting Hyde v. State, 778 So. 2d 199, 209 (Ala. Crim. App. 1998) ). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

" ‘The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady, 456 U.S. 152, 163 [102 S.Ct. 1584, 71 L.Ed.2d 816] (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. [157], at 160 [56 S.Ct. 391, 80 L.Ed. 555 (1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. at 163, n.14.’

"See also Ex parte Hodges, 856 So. 2d 936, 947-48 (Ala. 2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted))."

Ex parte Brown, 11 So. 3d 933, 938 (Ala. 2008).

" ‘The

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