State v. Graham

• Decision Date: 09 September 2020
• Docket Number: No. 52661-1-II,52661-1-II
• Parties: STATE OF WASHINGTON, Respondent, v. RANDOLPH THOMAS GRAHAM, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. RANDOLPH THOMAS GRAHAM, Appellant.

No. 52661-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

September 9, 2020

UNPUBLISHED OPINION

LEE, C.J. — Randolph T. Graham appeals his convictions for murder in the first degree, attempted murder in the first degree, drive-by shooting, manufacture of marijuana, and possession of a controlled substance. Graham argues that the trial court erred by (1) providing the jury with a first aggressor instruction and (2) denying his request to represent himself. Graham also submits a statement of additional grounds (SAG) raising numerous issues.

Because Graham raises the first aggressor issue for the first time on appeal and fails to argue or show that any error was a manifest error of constitutional magnitude, we decline to review Graham's first aggressor instruction claim. As to Graham's self-representation claim, we hold that the trial court did not err by denying Graham's request to represent himself. We also hold that the arguments in Graham's SAG lack merit or will not be addressed because they are raised for the first time on appeal. Accordingly, we affirm Graham's convictions.

FACTS

Randolph Graham and the Lesters were neighbors. Due to arguments over a shared well, an easement, and Graham's pet rabbits, Graham and the Lesters were not on good terms. On May 23, 2018, Graham drove up to the Lesters' house while Randy Lester and his son, Hunter, were playing basketball. Graham shot Randy¹ multiple times, and Randy died.

On August 21, 2018, the State charged Graham by Third Amended Information of murder in the first degree, attempted murder in the first degree, drive-by shooting, manufacture of marijuana, and possession of a controlled substance. The State alleged multiple aggravating factors relating to the murder in the first degree charge: being armed with a firearm, conduct during the offense manifesting deliberate cruelty to the victim, the victim being particularly vulnerable or incapable of resistance, the offense involving a destructive and foreseeable impact on persons other than the victim, and a demonstrated or displayed egregious lack of remorse. The State also alleged that the attempted murder in the first degree charge was aggravated by Graham being armed with a firearm.

A. JURY TRIAL

1. Jury Selection

During jury voir dire, the trial court asked the prospective jurors if they had knowledge of the case. Specifically, the court inquired into whether prospective jurors had information that was not in the public domain. Juror "Yellow No. 30" responded that she received information from Daniel Rogers, a name on the witness list. Verified Report of Proceedings (VRP) (Aug. 21, 2018)(individual voir dire) at 43. Yellow No. 30 stated that Rogers had been her horseshoer for several years. Rogers had stopped by Yellow No. 30's house the past weekend and started talking about the case. Randy, the victim, was Rogers's son-in-law. According to Yellow No. 30, "[Rogers] talked about how he was—what his daughter was going through. I think he was mostly upset about during the investigation he had mentioned that his son-in-law's body was left out and that upset him." VRP (Aug. 21, 2018) (individual voir dire) at 44. During her conversation with Rogers, Yellow No. 30 told Rogers that she was on jury duty, so they should not talk about the case. Rogers and Yellow No. 30 stopped their conversation quickly. In response to questioning from Graham's counsel, Yellow No. 30 stated that she did not know any facts about the case other than there was someone killed and she did not know how the person was killed. Yellow No. 30 also stated that her conversation and relationship with Rogers would not prevent her from being fair and impartial. Yellow No. 30 was selected to be on the jury.

After the trial court had empaneled the jury, the trial court asked the parties if the jury included the members they had selected. Both parties responded, "Yes." VRP (Aug. 21, 2018) (voir dire supplemental) at 129.

2. Request to Self-Represent

At the start of the third day of trial, Graham informed the court that he was firing his attorney and that he wanted to represent himself. Specifically, Graham stated:

Some things have changed in my life. After yesterday, what went on here in the courtroom, the things that I've heard, I'm going to fire my attorney right here, right now, and I'm going to ask you to allow me some leniency because of how I've been incarcerated and represent myself because I'm under a—what do you call—a self-defense is what I'm claiming. I'm not guilty.

I'd like to be able to present my case on my side on my behalf under what I know is quasi pro se, and I'm just asking you for that opportunity to do that. That ways [sic] I can actually defend myself, because what I got yesterday was no defense. I had two questions and a couple other things that I wasn't real happy with and I'm really not happy about, especially after spending the evening down there praying about it.

And I think the only way I'm going to get any kind of representation so I don't have to look at a jury with tears in their eyes, to watch my mom bawl because of how it's defamating [sic] who I am, and it's not who I am, and the things that are being brought up by the state is absolutely out of line. That's all I can say.

There's no reason why they need to be pulling this over here. They need to stick to who was at that scene. Nobody was at that scene. There was a man and a boy, one deceased, and that boy and me. And some things have been said that are so far out of line, it ain't even funny.

So I'm just asking you that I can at least have some subpoenas done. Even if you have to dismiss this and we reconvene later, that's fine with me. All right.

But my daughter needs to be here and bring all that paperwork that I had in a case, because I'm not going to allow Mrs. Lester to call me crazy ever again, not when I got pictures. I had a whole case set up to sue these people, and I believe that if the court will allow me to do this, I think that you'll be absolutely shocked at what I have, and I can actually prove that.

But I'm not going to hear about being crazy and dead people and all that stuff, not when I know for a fact that a Fortune 500 company is incinerating ancient remains, and that is so out of line for her to call my [sic] crazy for that.

VRP 3 (Aug. 23, 2018) 330-32.

Defense counsel informed the court that he was prepared to proceed with the trial, had discussed defense strategy with Graham, his trial strategy has been in line with the theory of self-defense, and he had a "very positive relationship" with Graham. VRP 3 (Aug. 23, 2018) at 332. In response, Graham claimed that he had twenty minutes with counsel in ninety days and stated "I need some subpoenas." VRP 3 (Aug. 23, 2018) at 333.

The trial court conducted a colloquy with Graham. In response to the court's inquiry as to whether he had ever represented himself before, Graham stated that he had not, but he had spoken to some friends who had self-represented in the past. In response to the court's further inquiries, Graham also stated that he did not yet have any legal training; he had taken some paralegal classes about 20 years ago; and he was not familiar with the rules of evidence, so he "would much prefer" reconvening at another time so that he would have additional time because he tried "to pull some of that stuff up, but I can't find it" at the "kiosk." VRP 3 (Aug. 23, 2018) at 335.

At the time Graham made his request to self-represent, the State had already called 9 witnesses to testify and was in the middle of questioning its tenth witness. That tenth witness was Rachel Lester, the dead victim's wife.

The trial court denied Graham's request to self-represent. The court expressed concern about Graham's ability to understand the legal process, particularly with the admissibility of evidence. Additionally, the trial court stated that the State's evidence had been presented in a manner consistent with the law and the court rules, and that Graham's counsel knew what he was doing and was conducting the defense strategically given the nature of the charges at issue. The court also took into consideration the gravity and the seriousness of the charges against Graham. As to Graham's request for time to become familiar with the rules of evidence, the court declined allowing Graham additional time to learn the law and the court rules, stating:

I'm not willing to stop the trial, I'm not willing to declare a mistrial to give you the opportunity to do so.

VRP 3 (Aug. 23, 2018) at 337.

3. Lay Witness Testimony

Bernard Guy Graham, Graham's father, testified that Graham visited him at his house on May 23, 2018. Graham had about 20 rabbits. Graham told Bernard that his neighbor had killed his rabbits that day. Graham had had issues with this neighbor in the past. Graham had complained that the neighbor had blocked Graham's "right of way" to Graham's house by parking a car on one side of the "right of way" and placing a basketball net on the other side. VRP 2 (Aug. 22, 2018) at 223-24. There was also an issue with the shared well. The neighbor had placed a "Do Not Trespass" sign on the well and was not paying the whole bill. VRP 2 (Aug. 22, 2018) at 224. On the day of the incident, Graham called Bernard, said that he had shot his neighbor, and asked Bernard to come to his house.

Hunter Lester, Randy's son, testified that on May 23, 2018, Hunter headed outside his house, saw Graham drive by, and waved to Graham. After Hunter waved, Graham sped up towards his own house. Hunter had never seen him do this before. After Graham pulled up to his own house, Hunter heard a gunshot, which Hunter believed came from Graham.

Hunter also testified that he and Randy started playing basketball. While they were playing basketball, Randy did not have a firearm on him. After five to ten minutes, Graham pulled up in his black truck. Hunter and Randy stepped...