State v. Graham, 86,899.
| Decision Date | 30 January 2004 |
| Docket Number | No. 86,899.,86,899. |
| Citation | 277 Kan. 121,83 P.3d 143 |
| Parties | STATE OF KANSAS, Appellee, v. LISA J. GRAHAM, Appellant. |
| Court | Kansas Supreme Court |
Korey A. Kaul, assistant appellate defender, argued the cause, and Shawn Minihan, assistant appellate defender, was with him on the brief for appellant. Ellen H. Mitchell, county attorney, argued the cause, and Phill Kline, attorney general, was with her on the brief for appellee.
The opinion of the court was delivered by
Lisa Graham was charged with and tried on two counts of attempted first-degree murder and on one count of aggravated arson. A mistrial was declared after the jury twice informed the trial court it was deadlocked. The trial court acquitted Graham on the aggravated arson charge. Before she was retried, four counts of aggravated assault on a law enforcement officer were added to the charges against her. Graham was convicted by a second jury on all counts. In an unpublished opinion, the Court of Appeals affirmed the convictions of attempted first-degree murder, reversed the convictions of aggravated assault on a law enforcement officer, disapproved a 60-month postrelease supervision term imposed on Graham, and remanded for resentencing. The court granted Graham's petition for review of the Court of Appeals' decision on the issues of prosecutorial misconduct, double jeopardy, and sufficiency of the evidence of attempted first-degree murder.
Graham raises the following issues:
1. Did the prosecutor's comments in closing argument deprive defendant of a fair trial?
2. Did the second trial violate defendant's right not to be subjected to double jeopardy?
3. Was there sufficient evidence to support the convictions of attempted first-degree murder?
In September, Graham was experiencing problems in the office, with her family, and with her love life, and her sales fell off. In the office, a newly-hired salesperson discounted accessories to make sales, which was not acceptable to Graham, and Graham testified that someone put up pictures of monkeys, which she believed to be depicting her. With regard to her personal life and family, her sister was the complaining witness in a prosecution of Graham for kicking down the door of her sister's house in November 1998 to see if Graham's boyfriend was there. The case was tried on September 28, 1999, Graham's attorney withdrew, she was found guilty, and her family supported her sister. Graham was hurt and angry when the proceeding ended. She was supposed to go to court services to arrange for a presentence investigation. Graham testified:
Graham went straight home and went to sleep.
When she got up early the next morning, September 29, she was thinking about the police coming in her house. She stretched a wire from her refrigerator to the basement door hinge to keep the door from opening completely and to cause it to make a noise if the door were opened. She put some charcoal lighter fluid in a bowl and set it in front of the front door with a candle between the bowl and the door. Graham testified that "if somebody came in they would knock the candle over and ignite the charcoal fluid and they'd see the—the flame go up and stay out." Without lighting the candle, she went back to sleep.
Later in the morning, she awoke to someone knocking on her door. She assumed it was the police, did not answer, and went back to sleep. When she woke up in the afternoon, she called her friend, Georgaleen Thomas, at Cellular One to see if the police had been there looking for her. She was told the police had not been there, but, because she was expecting the police to try to arrest her, she stayed in her house.
Sometime during the morning of September 30, police officers Edward Swanson and Tom Gardner went to Graham's house to serve the warrant that had been issued for her arrest. They knocked repeatedly, but no one answered the door.
Graham had taken a couple of days approved vacation on September 28 and 29, but she was expected back at work at noon on September 30. At approximately 11:30 that morning, she called her supervisor to say that she would not be coming in anymore and that she wanted certain of her accounts transferred to Thomas. After Thomas returned to work from lunch on September 30, she received a call from Graham. Thomas told Graham that the police were looking for her, and Graham said that she wasn't going to turn herself in. Thomas, who had known Graham for many years, described her as "really calm" during the call. After Graham ended the conversation, Thomas went straight to their supervisor with her fear that Graham was contemplating suicide. Thomas then called the suicide hotline, reported her concern, and gave them Graham's name and place of residence. The person she talked with on the suicide hotline told Thomas that he had to notify the police.
Brandon Tomson was the first police officer to arrive at Graham's house. He had been told by the dispatcher that the occupant of the house was threatening suicide. He knocked on the front door, got no answer, tried the door and found it locked, then walked around the house looking for access. He found none, and the closed blinds kept him from seeing in the windows. He remained on or near the deck at the back of the house.
Officers John Krenowicz and Russ Lamer arrived next. Without getting any response, they continued to try the doors, they had dispatch ring the telephone in the house, and they called Graham's cell phone. Krenowicz located one window on the southeast part of the house that was unlocked and had some screws missing from the storm window. He and Lamer removed the remaining screws and opened the window. There was a strong odor of gasoline. Krenowicz and Lamer crawled in through the window of the unoccupied room and found that the carpet was soaked with liquid. With their weapons drawn and acting as a team, the officers began to check the house for occupants. As they got into the living room, Krenowicz saw Graham standing in the doorway that led down to the basement and made eye contact with her.
Graham brought up her right arm up and lit the lighter she was holding. Underneath her left arm, Graham had what appeared to be Roman candles. She was backing down the basement stairs. Krenowicz yelled at Lamer to get out. As Krenowicz was undoing the locks on the front door, he heard popping sounds and he noticed a bowl and unlit candle on the floor.
Once outside, he yelled at newly arrived Officer Lanning to help him get fire extinguishers out of the patrol units. Krenowicz gave an extinguisher to Lamer, and the two of them stood near the front door. They could see flaming balls from the Roman candles, and the house started filling with smoke. Lamer tried to douse the flames with his extinguisher. One of the flaming balls hit Lamer in the chest and burned a small hole in his uniform.
The fire department arrived, and a fireman kicked the back door open. Lamer saw Graham through the smoke in the house, he yelled for Graham to come out, then he and Krenowicz reentered the house. Krenowicz drew his gun. Lamer dashed approximately 10 to 12 feet into the house and tackled Graham. Lamer testified that he saw Graham raise her right hand, which appeared to have something in it. A gun fired. At first, Lamer was not sure what made the noise. Lamer picked Graham up and took her out the front door. After she was handcuffed, some handgun shells were found on her. Graham had safety-pinned a note inside her jacket, dated September 30, 1999, that stated:
Graham testified that she fired the Roman candles trying to set her house on fire. She further testified that, with the house filled with smoke and firemen and police officers on all sides of the house, she dropped the fireworks, and took the gun from her waistband to put it under her chin. According to Graham, the next thing she knew she was on the floor.
After the fire was out, police reentered the house and found a.38 Taurus handgun on the floor. There were five rounds in it; one was a spent shell that was under the firing pin. One spent projectile was removed from the ceiling joists. There was a gasoline can on the steps to the basement. Articles of Graham's clothing and items collected from throughout her house tested positive for gasoline. A medium petroleum distillate, which charcoal lighter fuel frequently is made from, also was detected on some items.
We first consider whether the prosecutor's comments in closing argument deprived Graham of a fair trial.
A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. State v. Scott, 271 Kan. 103, 113, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). The facts of each case must be scrutinized in determining whether a prosecutor's remarks deny the defendant a fair trial. See State v. Rodriguez, 269 Kan. 633, 641, 8...
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