State v. Graham

• Decision Date: 26 October 1990
• Docket Number: No. 64206,64206
• Citation: 247 Kan. 388,799 P.2d 1003
• Parties: STATE of Kansas, Appellee, v. James E. GRAHAM, Appellant.
• Court: Kansas Supreme Court

Page 1003

799 P.2d 1003

247 Kan. 388

STATE of Kansas, Appellee, v. James E. GRAHAM, Appellant.

No. 64206.

Supreme Court of Kansas.

Oct. 26, 1990.

Syllabus by the Court

1. The complaint is a written statement under oath of the essential facts constituting a crime. K.S.A.1989 Supp. 22-2202(8). The lack of verification on the complaint is not a defect that deprives the court of jurisdiction.

2. K.S.A.1989 Supp. 22-3208(3) requires defenses or objections based on defects in the institution of the prosecution or in the complaint, with certain exceptions, to be raised by motion before trial.

3. The district court may permit a complaint or information to be amended at any time before the verdict or finding if no additional or different crime is charged and the substantial rights of the defendant are not prejudiced. K.S.A. 22-3201(4).

4. The admission into evidence of photographs of homicide victims must necessarily rest largely in the discretion of the trial judge. In each case, it is the trial judge who determines whether the photographs serve a proper purpose in the jury's enlightenment. His action will not be disturbed by an appellate court unless there was an abuse of discretion. State v. Ruebke, 240 Kan. 493, 516-17, 731 P.2d 842 (1987).

5. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Smith, 245 Kan. 381, Syl. p 5, 781 P.2d 666 (1989).

Richard G. Tucker, Parsons, argued the cause and was on the brief, for appellant.

John K. Bork, Asst. Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

LOCKETT, Justice:

James E. Graham (defendant-appellant) appeals his conviction of first-degree murder (K.S.A.1989 Supp. 21-3401), claiming the District Court of Labette County erred by: (1) failing to sustain his motion for dismissal of an unverified complaint; (2) admitting his statements to law officers; (3) failing to grant a new trial based on the prejudicial remarks by the prosecution made in closing argument; (4) admitting one of the autopsy photographs; and (5) allowing him to be convicted on insufficient evidence.

Colleen Graham, the victim, and her husband James Graham had lived in Parsons for approximately twenty-five years. They owned a tavern, a liquor store, and seven rental properties. Graham, a retired sheet metal worker, ran the tavern while Colleen, who was employed as a supervisor at the Kansas Army Ammunition Plant, managed the liquor store.

At 8:14 p.m. on August 6, 1988, the Parsons Police Department received a call from Louella Marzette, Colleen's sister, who expressed concern about her sister. At 8:20 p.m., the police received a call from Graham. He informed the police that his wife had been shot.

Graham was at the residence when the officer arrived. There was evidence of a forced entry through the rear door of the home. Inside the house some furniture was tipped over and various items of personal property were strewn about. Nothing was reported stolen and the items usually taken in a burglary, i.e., guns, money, and electronic equipment, were still in the home. The officers found Colleen's body in the bed. She had been shot in the head. The county coroner estimated Colleen had died earlier that day between the hours of 6:00 a.m. and 10:00 a.m.

To insure that nothing would be disturbed, the police suggested that Graham wait at the police station while they processed the crime scene. Graham was driven to the station, where he waited in the unlocked patrol lieutenant's office. While waiting at the station, Graham was not watched or restrained in any manner. No one explained why on appeal, but defendant was read his Miranda rights and signed a waiver of those rights at 10:15 p.m.

At 1:30 a.m., a K.B.I. special agent, who had been called to assist at the crime scene, and a Parsons detective were informed that Graham wanted to talk to someone. During their conversation Graham denied killing his wife. He told the officers that when he left home, before 9:00 a.m., to go to the liquor store, Colleen was fine. Graham stated he remained at the tavern until he returned home to eat about 6:00 p.m. When officers informed Graham that he had been seen near his residence at 2:00 p.m., Graham remembered he had gone home to pick up some disinfectant to clean the tavern but had not checked on his wife. He said when he left, the house was locked and in its normal condition. Graham said it was when he went home again at about 6:00 p.m., that he found his wife's body in bed. Graham told the officers that after discovering her body he went to the kitchen to fix some soup and that he did not call the police right away because he was too upset. After the conversation, Graham left the police station and was taken to his tavern.

After their conversation with Graham, the officers returned to the residence but found no soup cans or evidence of soup having been prepared. A search warrant was then obtained to check the residence for the murder weapon. In the bedroom, several rifles and shotguns were in the upper section of a gun cabinet. A key found behind the bedroom door unlocked the lower drawer of the gun cabinet. A revolver was found in the drawer. The revolver was sent to the K.B.I. lab in Topeka for testing. After ballistics tests determined that bullets fired from the revolver found at the defendant's residence matched the bullet taken from the victim's body, Graham was arrested on August 15, 1988.

During the trial Graham's testimony conflicted with that of some of the State's witnesses. James R. "Lucky" Graham, the son of Colleen and James E. Graham, testified that he had lived with his parents until June or July 1988 when he had moved out. He did not have a key to the house. He testified he saw his mother at the tavern on August 5 around 9:00 p.m. When the tavern closed, he and his mother went to Cynthia Cullom's house. They arrived at Cynthia's house between 1:00-1:30 a.m. and stayed for about an hour. Lucky testified that when Colleen left Cynthia's house about 2:00 a.m., he followed her home but did not go in. After driving around, he returned to his parents' house at 2:30 a.m. Lucky testified that when he entered the house, his parents were at the dining room table discussing the employment of Cynthia Cullom. His father had a .38 caliber snub nose revolver on the table. Lucky testified his father had two pistols of this type. His father carried one of the pistols with him when transporting large sums of money. The other pistol was kept in a locked gun cabinet located in the parents' bedroom. There was no evidence that the pistol Lucky saw was the murder weapon.

Lucky further testified that when he called his mother on August 6 between 9:00 and 9:30 a.m., his father answered the phone and said he did not know where Colleen was. About 12:00 or 12:30 p.m., Lucky stated he went by his parents' house and rang the doorbell. When there was no answer, he went to the tavern, where his father again told him he did not know where Colleen was.

Graham's testimony also conflicted with that of Gina Green, who worked at Graham's liquor store from 9:00 a.m. to 6:00 p.m. Gina testified that on Saturday, August 6, Graham picked her up about 5 minutes before 9:00 a.m. They arrived at the liquor store about 9:05 a.m. Graham stayed for about five minutes and then left. Gina testified Graham was driving Colleen's car rather than his pickup but this was not unusual. Graham parked the car between the liquor store and the tavern. This prevented her from observing the car. She did not know if Graham had left the tavern during that day, but said Graham was at the tavern both times she had gone there that afternoon to get food.

Gina testified that Lucky came to the liquor store to ask her if she had seen his mother. Colleen usually came by the liquor store around noon on Saturdays. After Lucky left she called Colleen at home but no one answered. Gina said she returned to the tavern about 7:00 to ask Graham why Colleen had not relieved her at 6:00 p.m. as was usual. Graham told Gina he did not know where Colleen was but he would check. Gina estimated Graham was gone from the tavern about five or ten minutes. When Graham returned he told her Colleen was dead and it appeared someone had broken into the house. When asked by the prosecutor how long it would take Graham to get from the tavern to his home, Gina estimated at least five minutes.

Louella Marzette testified that after being unable to contact her sister Colleen on Saturday, August 6, 1989, she drove to the liquor store and found Gina Green crying. Gina told her that Graham had told her Colleen was dead. Louella and her husband then drove to the Graham house and found Graham, who had just arrived, at the house. Graham told her that he did not know where Colleen was. Louella stated she and her husband went to their home and called her other siblings in an attempt to locate Colleen before calling the police after 8:00 p.m.

The KBI agent who had interviewed Graham in the early morning hours of August 7, testified Graham denied telling either his son, Lucky, or Colleen's sister, Louella, he did not know where Colleen was.

The State presented testimony of a Parsons police officer who had previously responded to a disturbance at the Grahams' liquor store on May 24, 1988. The officer testified that when he and another officer arrived they found the liquor store door locked and Colleen inside. Colleen told them, because of problems with her husband, she had thrown him out of the liquor store and locked the door. About two minutes later Graham arrived and stated, "If I would have had my gun, I would have killed her," and "You know me, and you know...