Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Graham v. State

Alabama Court of Criminal Appeals

July 12, 2019

Lisa Leane Graham
State of Alabama

          Appeal from Russell Circuit Court (CC-07-686)

          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 event 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 Shea 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, 15105 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 (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 [(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 standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.' Hall v. State, 820 So.2d 113, 121 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala. 2001). Although [the appellant's] failure to object at trial will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala. 1992)."

Knight v. State, [Ms. CR-16-0182, August 10, 2018] ___ So.3d ___, ___ (Ala.Crim.App.2018). With these principles in mind, we review the claims raised by Graham in her brief to this Court.

         Guilt-Phase Issues


         Graham argues that her constitutional right to a speedy trial was violated because, she says, more than eight years elapsed between her arrest and her conviction. Graham was arrested in July 2007 and sentenced in November 2015. She further argues that there was no "manifest necessity" for declaring a mistrial in her first trial; therefore, she asserts, her constitutional right to be free from double jeopardy was also violated.


         In determining whether a defendant has been denied his or her constitutional right to a speedy trial, we apply the four-prong test announced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). We consider the following: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right to a speedy trial; and (4) the prejudice to the defendant.

         The Alabama Supreme Court, in Ex parte Walker, 928 So.2d 259, 263 (Ala. 2005), noted:

"'A single factor is not necessarily determinative, because this is a "balancing test, in which the conduct of both the prosecution and the defense are weighed."' Ex parte Clopton, 656 So.2d [1243] at 1245 [(Ala. 1985)] (quoting Barker [v. Wingo], 407 U.S. [514] at 530, 92 S.Ct. 2182');">92 S.Ct. 2182');">92 S.Ct. 2182');">92 S.Ct. 2182 [(1972)]). We examine each factor in turn."

928 So.2d at 263.

         Graham and the State agree that 8 years, or 96 months, passed from the time that she was arrested until her conviction. However, Graham ignores the fact that her first trial ended in a mistrial. The intervening mistrial impacts the starting date for examining the Barker v. Wingo factors. Under the circumstances, Alabama has joined the majority of jurisdictions, measuring the starting date for purposes of a speedy-trial analysis from the declaration of a mistrial.

"'[T]he time between a conviction and a reversal which requires retrial is clearly not counted for speedy trial purposes. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).' United States v. Bizzard, 674 F.2d 1382 (11th Cir. 1982), cert. denied, 459 U.S. 973, 103 S.Ct. 305, 74 L.Ed.2d 286 (1982). Other states that base their analysis of the speedy trial issue in [such a] situation on the constitutional standards set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), also begin the period on the date of reversal, where appellate action requires the retrial. State v. Ferguson, 576 So.2d 1252 (Miss. 1991)."

Nickerson v. State, 629 So.2d 60, 63 (Ala.Crim.App.1993). More recently, in Clancy v. State, 886 So.2d 166, 171 (Ala.Crim.App.2003), this Court, relying on Nickerson, held that, when evaluating a speedy-trial claim after a mistrial, the relevant starting date is the date of the declaration of the mistrial.

"'[F]or the purpose of determining whether a defendant has been denied a speedy trial in a retrial, the time period is measured from "the action occasioning the retrial." Nickerson v. State, 629 So.2d 60, 62-63 (Ala.Crim.App.1993).' Weaver v. State, 763 So.2d 972, 978 (Ala.Crim.App.1998). Clancy's second trial commenced on April 7, 2001. For purposes of our speedy-trial analysis, then, we consider the approximately 19-month delay between the mistrial and the second trial."

886 So.2d at 171.

         Other courts apply the same analysis. See Greene v. State, 237 Md.App. 502, 515 n. 3, 186 A.3d 207, 214 n.3 (2018) ("[W]hen a mistrial is declared or when a case is reversed on appeal, it is the time between the grant of a mistrial (or mandate reversing the prior trial) and the commencement of the subsequent trial date that is counted in a speedy trial analysis."); State v. White, 275 Kan. 580, 602, 67 P.3d 138, 153-54 (2003) ("The speedy trial statute, K.S.A. 22-3402(4), dictates how time is to be computed when the trial court grants a mistrial: '(4) in the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.'"); People v. Merrihew, 755 N.Y.S.2d 462, 463, 301 A.D.2d 970, 971 (2003) ("[T]he criminal action is deemed to have recommenced, thus triggering the speedy trial clock, when a mistrial is declared and a new trial is ordered. ..."); Jones v. State, 846 So.2d 1041, 1045 (Miss. 2002) ("The statutory right [to a speedy trial] is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Only the constitutional speedy trial analysis is relevant thereafter.").

"The State argues on appeal that any delay in [the appellant's] first trial is irrelevant in an analysis of a speedy trial claim. It cites the rule set forth in the American Bar Association Project on Minimum Standards for Criminal Justice, Speedy Trial, Section 2.2, (Approved Draft 1968), which was adopted by this Court in State v. Sanders (1973), 163 Mont. 209, 214, 516 P.2d 372, 375:

         "When time commences to run.

         "The time for trial should commence running ...

"'(c) if the defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, from the date of the mistrial, order granting a new trial, or remand.'" State v. Marquardt, 243 Mont. 133, 135, 793 P.2d 799, 800 (1990).[3]

          1. Length of Delay. Shea was murdered on July 5, 2007, Graham was arrested on July 8, 2007, and Graham was indicted on October 20, 2007. (C. 80.) Graham was originally tried in September 2012, tried a second time in February 2015, and convicted in March 2015. The delay in this case -- the period between the mistrial and the second trial -- was 29 months, not the 96 months that Graham asserts applies in this case.

"In Doggett v. United States, the United States Supreme Court explained that the first factor --length of delay -- 'is actually a double enquiry.' 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). The first inquiry under this factor is whether the length of the delay is '"presumptively prejudicial."' 505 U.S. at 652, 112 S.Ct. 2686 (quoting Barker [v. Wingo], 407 U.S. [514] at 530-31, 92 S.Ct. 2182');">92 S.Ct. 2182');">92 S.Ct. 2182');">92 S.Ct. 2182 [(1972)]). A finding that the length of delay is presumptively prejudicial 'triggers' an examination of the remaining three Barker factors. 505 U.S. at 652 n. 1, 112 S.Ct. 2686 ('[A]s the term is used in this threshold context, "presumptive prejudice" does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.'). See also Roberson v. State, 864 So.2d 379, 394 (Ala.Crim.App.2002)."

Ex parte Walker, 928 So.2d at 263-64.

"The Alabama Supreme Court in [Ex parte] Walker, [928 So.2d 259 (Ala. 2005), ] held that a 50-month delay between arrest and trial was presumptively prejudicial. See also State v. Van Wooten, 952 So.2d 1176 (Ala.Crim.App.2006) (29-month delay was presumptively prejudicial); State v. Stovall, 947 So.2d 1149 (Ala.Crim.App.2006) (41-month delay was presumptively prejudicial); Vincent v. State, 607 So.2d 1290 (Ala.Crim.App.1992) (31-month delay was presumptively prejudicial). Cf. State v. Johnson, 900 So.2d 482 (Ala.Crim.App.2004) (28-month delay not presumptively prejudicial); Payne v. State, 683 So.2d 440 (Ala.Crim.App.1994) (25-month delay was not presumptively prejudicial)."

Sharifi v. State, 993 So.2d 907, 922 (Ala.Crim.App.2008). Thus, because the delay in this case was presumptively prejudicial, we also examine the remaining Barker factors.

         2. Reasons for the Delay.

         On September 25, 2012, a mistrial was declared by Judge George R. Greene. Thereafter, Judge Greene was granted a leave of absence for medical reasons.

         In October 2012, Graham moved that she be immediately released from custody and that all judges except Judge Greene be disqualified from presiding over her retrial. (C. 360.) On October 31, 2012, the Presiding Judge of the Russell Circuit Court certified to the Chief Justice of the Alabama Supreme Court that all the judges in that county had recused themselves from the case and that a special judge was needed. (C. 365.) On November 8, 2012, the Chief Justice appointed Judge Jacob A. Walker III to preside over the case. (C. 366.) Judge Walker set the case for a status conference on January 3, 2013. In May 2013, Graham moved that the case against her be dismissed because, she argued, the Double Jeopardy Clause barred her retrial. (C. 380.) A lengthy hearing was held on this motion. On July 13, 2013, Judge Walker issued a 17-page order denying Graham's motion to dismiss. (C. 406.) On July 16, 2013, Graham moved that the proceedings be stayed pending the disposition of a petition for a writ of mandamus that she intended to file in an appellate court. The circuit court granted that motion and stayed all proceedings on July 17, 2013. On July 26, 2013, Graham filed a petition for a writ of mandamus in this Court attacking the circuit court's ruling denying her motion to dismiss. By order dated October 2, 2013, this Court denied mandamus relief. Ex parte Graham (No. CR-12-1690, October 2, 2013), 173 So.3d 12 (Ala.Crim.App.2013)(table). Graham then filed a similar petition in the Alabama Supreme Court. On August 8, 2014, the Alabama Supreme Court likewise denied mandamus relief. Ex parte Graham (No. 1130052, August 8, 2014), 91');">194 So.3d 991 (Ala. 2014)(table).

         Immediately after the mandamus proceedings were concluded, the State moved that a date be set for Graham's retrial. (C. 469.) Graham was tried in February 2015 and convicted in March 2015.

         The majority of the delay in this case was based on motions and extraordinary petitions filed by Graham. "'"Delays occasioned by the defendant or on his behalf are excluded from the length of the delay and are heavily counted against the defendant in applying the balancing test of Barker."'" Walker, 928 So.2d at 265, quoting Zumbado v. State, 615 So.2d 1223, 1234 (Ala.Crim.App.1993), quoting in turn McCallum v. State, 407 So.2d 865, 868 (Ala.Crim.App.1981).

         3. Assertion of Right.

         Graham did not file any motion for a speedy trial. Indeed, she never asserted her right to a speedy trial. In fact, the record shows that on January 3, 2013, Graham's counsel specifically stated: "[T]here is, in fact, an agreement we would waive a speedy trial." (R. 23.)

         4. Prejudice to Defendant.

         Graham argues that she was prejudiced by the delay because (1) the judge handling the case was forced to declare a mistrial; (2) one of the State witnesses, Warren Thompson, passed away; and (3) she was held without bond until 2013. However, Graham makes no argument as to how she was prejudiced by these three factors.

         First, the mistrial was declared due to the judge's medical problem and the judge's indefinite leave of absence. Second, Thompson testified in Graham's first trial and was subjected to cross-examination, and his testimony was admitted into evidence at Graham's second trial. Third, Graham was first granted bond in September 2010 well before the date she cites in her brief to this Court.

         Based on our weighing of the Barker factors, we hold that Graham was not denied her constitutional right to a speedy trial. Graham is due no relief on this claim.


         Graham also argues that her double jeopardy rights were violated because, she says, there was no "manifest necessity" for declaring a mistrial in her first trial.

         The record shows that in May 2013 Graham moved that the charges against her be dismissed based on double-jeopardy grounds. The circuit judge denied that motion, and this Court denied mandamus relief on that basis. When denying Graham's mandamus petition, this Court stated:

"Judge [Jacob] Walker, in his order, discussed the four considerations addressed by the Alabama Supreme Court in Ex parte Head, 958 So.2d 860 (2006), when considering whether a retrial was barred: (1) Whether the trial judge acted in Graham's best interest; (2) Whether alternatives to a mistrial were considered; (3) Whether Graham was given an opportunity to explain [her] position on the mistrial; and (4) Whether the declaration of a mistrial denied Graham the right to '"retain primary control of the course to be followed" in the event of an error at trial.' 958 So.2d at 866-67.
"Judge [George] Greene testified that he has had diabetes for 15 years and at the time of Graham's trial he had a 'vitreous hemorrhage in his right eye,' which resulted in headaches and blurred vision for distant objects. He said that he knew he needed medical treatment but that he delayed treatment to complete the trial. After consulting with the Presiding Judge of that circuit, he said he was 'ordered' to declare a mistrial because of his 'medical status.' Judge Johnson testified that he was aware of Judge Greene's past medical problems, that he had been alerted that Judge Greene was sleeping during voir dire, that he urged Judge Greene to seek medical help, and that he did not order Judge Greene to declare a mistrial. There was also testimony that there was no other judge in the circuit that could handle Graham's case if a mistrial had not been declared. Judge Walker found that he was 'unable to reach a clear determination about whether the defense was given an opportunity to object prior to the declaration of the mistrial; therefore, this factor does not lend any guidance towards whether manifest necessity existed.' Judge Walker stated: '[i]t appears that the mistrial was not declared to protect the interests of any one individual; it was declared out of a need to protect the rights of all parties, including the immediate health concerns of Judge Greene, and to promote the substantial ends of public justice.'
"Graham failed to meet her heavy burden of establishing a clear legal right to the issuance of a writ of mandamus."

         (Order of October 2, 2013.)

         On appeal, the State argues that this Court's ruling on Graham's petition for the writ of mandamus constitutes the law of the case and is binding on this Court in this appeal. It relies on Arthur v. State, 238 So.2d 1276 (Ala.Crim.App.2017), to support this argument.

         This Court in Arthur held that the Alabama Supreme Court's prior determination "that Arthur's declaratory-judgment action [was] in substance a Rule 32, Ala. R. Crim. P., petition" was the law of the case. 238 So.2d at 1278. Our holding in Arthur has no application to the facts of this case because it did not involve a ruling on an extraordinary petition and a subsequent direct appeal involving the same issue in the same case.

         Indeed, the Alabama Supreme Court in Ex parte Shelton, 814 So.2d 251 (Ala. 2001), specifically held that the previous denial of a mandamus petition raising the same issue does not invoke the law-of-the-case doctrine. The Court stated:

"[T]his Court has held, 'the denial [of a petition for a writ of mandamus] does not operate as a binding decision on the merits.' R.E. Grills, Inc. v. Davison, 641 So.2d 225, 229 (Ala. 1994). '[T]he denial of relief by mandamus does not have res judicata effect.' Cutler v. Orkin Exterminating Co., 770 So.2d 67, 69 (Ala. 2000); Jack Ingram Motors, Inc. v. Ward, 768 So.2d 362 (Ala. 1999); Quality Truck & Auto Sales, Inc. v. Yassine, 730 So.2d 1164, 1167 (Ala. 1999)."

814 So.2d at 255. This is true because the standard of review when considering a petition for a writ of mandamus is stricter than the standard for reviewing an issue on direct appeal.

         Other states have reached this same conclusion. For example, the Oklahoma Supreme Court in Miller Dollarhide, P.C. v. Tal, 174 P.3d 559 (Okla. 2006), stated:

"Our sister jurisdictions considering this issue have generally adopted the rule that a denial of a writ of mandamus by a supervisory court, without opinion, is not entitled to preclusive effect. The Supreme Court of Alabama in In re Shelton, 814 So.2d 251, 255 (Ala. 2001), has taken the position that 'the denial of a petition for a writ of mandamus does not operate as a binding decision on the merits.' Likewise, the Supreme Court of California reached a similar conclusion in Kowis v. Howard, 3 Cal.4th 888, 12 Cal.Rptr.2d 728, 838 P.2d 250, 256 (1992):
"'... if the denial followed a less rigorous procedure, [than that of full argument and opinion], it should not establish law of the case. To be sure, the court on a later appeal might often reach the same result as before. But it is not required to do so by the law of the case doctrine ... A summary denial of a writ petition does not establish law of the case whether or not that denial is intended to be on the merits or is based on some other reason. ...'
"The Federal Courts have adopted a similar approach."

174 P.3d at 564-65. See also Annot., Judgement Granting or Denying Writ of Mandamus or Prohibition as Res Judicata, 21 A.L.R. 3d 206 (Supp. 2003).

         Nonetheless, we reach the same holding that this Court reached when it issued its order denying Graham's mandamus petition. A mistrial was properly declared because the trial judge had a medical problem and there was no other judge in that circuit who could preside over Graham's trial.

         "[T]he accused may be subjected to a second trial only where the prosecutor can demonstrate manifest necessity for terminating the first trial." Ex parte Whirley, 530 So.2d 865, 868 (Ala. 1988).

"The words 'manifest necessity' appropriately characterize the magnitude of the prosecutor's burden. For that reason Mr. Justice Story's classic formulation of the test has been quoted over and over again to provide guidance in the decision of a wide variety of cases. Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word 'necessity' cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a 'high degree' before concluding that a mistrial is appropriate."

Arizona v. Washington, 434 U.S. 497, 505-06 (1978)(footnotes omitted).

         "Because the illness of the judge rendered completion of the trial by the original tribunal effectively impossible, there was no method by which appellant's 'valued right to have his trial completed by a particular tribunal,' United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 557, 27 L.E.2d 543 (1971)(plurality opinion)(Harlan, J.) could be reconciled with the public interest in obtaining the adjudication of guilt or innocence." Commonwealth v. Robson, 461 Pa. 615, 623, 337 A.2d 573, 577 (1975).

"[W]e hold that when, as in this case, the trial judge has become so seriously ill as to be confined to a hospital, and when it is expected that he may be required to remain in the hospital for more than one day (and in this case did remain for one week), the state, upon proof of such fact (which are admitted in this case), has sustained its burden to show that there was such a 'manifest necessity' as to justify the dismissal of the jury and avoid the bar of double jeopardy."

State v. Cole, 286 Or. 411, 424, 595 P.2d 466, 473 (1979). See also United States v. Holley, 986 F.2d 100, 104 (5th Cir. 1993) ("[M]anifest necessity for mistrial exists where judge or juror cannot attend because of illness or death."); Commonwealth v. Hunter, 381 Pa. Super. 499, 505, 554 A.2d 112, 115 (1989) ("Circumstances in which retrial was justified by manifest necessity include 'jury deadlock, jury bias and illness of the judge or jury.'"); State ex rel. Brooks v. Worrell, 156 W.Va. 8, 11-12, 190 S.E.2d 474, 476 (1972) ("[I]t has been held that where unforeseeable circumstances arise during the trial of a case, such as, illness or death of a juror, the accused, the judge or counsel, making the completion of the trial impossible, a manifest necessity to discharge the jury will exist and the declaration of a mistrial will be justified."); United States v. Smith, 390 F.2d 420, 425 (4th Cir. 1968) ("It is manifestly necessary to curtail a trial when ... a participant in the proceedings dies or becomes ill. ..."); State v. Malouf, 199 Tenn. 496, 504, 287 S.W.2d 79, 82 (1956) ("It is now universally held that a dismissal of a jury without [the defendant's] consent will not acquit the defendant when the jury has been unable to agree or if it is done on account of the illness or death of the trial judge. ...").

         Accordingly, we affirm this Court's holding that Graham's right to be free from double jeopardy was not violated in this case because a manifest necessity existed for declaring a mistrial in Graham's original trial. Graham is due no relief on this claim.


         Graham next argues that the circuit court erred in "reopening the suppression hearing." (Graham's brief at p. 35.) Specifically, she argues that the circuit court's ruling in her first trial on the merits of her motion to suppress the contents of a conversation with her husband should not have been reconsidered during her retrial because, she says, "the principles of collateral estoppel" barred the court from reconsidering the issue.

         In Graham's first trial, the circuit court granted Graham's motion to suppress because, it ruled, the conversation was protected by marital privilege.[4] However, in the second trial the circuit court denied Graham's motion to suppress after finding that Graham knew that her conversation with her husband was being recorded; therefore, the court concluded, the conversation was not a confidential marital communication.

"'A mistrial is the equivalent of no trial and leaves the cause pending in the circuit court. State v. Smith, 336 S.C. 39, 518 S.E.2d 294 (Ct. App. 1999). It leaves the parties "as though no trial had taken place." Grooms v. Zander, 246 S.C. 512, 514, 144 S.E.2d 909, 910 (1965) (rulings of trial judge in proceeding ending in mistrial represent no binding adjudication upon the parties as the mistrial leaves the parties in status quo ante). A court ruling as to admissibility and competency of testimony during a trial which is later declared a mistrial results "in no binding adjudication of the rights of the parties." Keels v. Powell, 213 S.C. 570, 572, 50 S.E.2d 704, 705 (1948).
"'Here, the case having resulted in a mistrial, it was a nullity and therefore began anew when called again for trial. State v. Mills, 281 S.C. 60, 314 S.E.2d 324, cert. denied 469 U.S. 930');">469 U.S. 930, 105 S.Ct. 324, 83 L.Ed.2d 261 (1984) (when mistrial occurs because of inability of jury to agree on verdict, it is the same as if no trial took place).'"

Morris v. State, 60 So.3d 326, 361-62 (Ala.Crim.App.2010), quoting State v. Woods, 382 S.C. 153, 157-58, 676 S.E.2d 128, 131 (2009). See also State v. Knight, 245 N.C.App. 532, 538, 785 S.E.2d 324, 331 (2016) ("[W]hen a defendant is retried following a mistrial, prior evidentiary rulings are not binding. State v. Harris, 198 N.C.App. 371, 376, 679 S.E.2d 464, 468 (2009). Indeed, once a mistrial has been declared, 'in legal contemplation there has been no trial.'"); State v. Campbell, 414 N.J.Super. 292, 298, 998 A.2d 500, 504 (2010) ("'[T]he declaration of mistrial rendered nugatory all of the proceedings during the first trial,' ... Further, '[a] mistrial is not a judgment or order in favor of any of the parties. It lacks the finality of a judgment, and means that the trial itself was a nullity.'").

         The circuit court did not abuse its considerable discretion in issuing a different ruling on this issue during the retrial.[5] Indeed, because all the rulings in the first trial were by legal definition a nullity, the circuit court correctly reconsidered every evidentiary issue that was presented at Graham's second trial. Graham is entitled to no relief on this claim.


         Next, Graham argues that death-qualifying the prospective jurors resulted in a conviction-prone jury and disproportionately excluded minorities and women.

         The United States Supreme Court in Lockhart v. McCree, 476 U.S. 162 (1986), held that prospective jurors in a capital-murder case may be "death-qualified." Alabama has repeatedly upheld this practice.

"A jury composed exclusively of jurors who have been death-qualified in accordance with the test established in Wainwright v. Witt, 469 U.S. 412');">469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), is considered to be impartial even though it may be more conviction prone than a non-death-qualified jury. Williams v. State, 710 So.2d 1276 (Ala. Cr. App. 1996). See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). Neither the federal nor the state constitution prohibits the state from ... death-qualifying jurors in capital cases. Id.; Williams; Haney v. State, 603 So.2d 368, 391-92 (Ala. Cr. App. 1991), aff'd, 603 So.2d 412 (Ala. 1992), cert. denied, 507 U.S. 925, 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993)."

Davis v. State, 718 So.2d 1148, 1157 (Ala.Crim.App.1995) (opinion on return to remand).

         The circuit court correctly allowed the prospective jurors to be death-qualified concerning their views on capital punishment. Graham is due no relief on this claim.


         Graham next argues that the circuit court erred in refusing to remove prospective juror E.P.[6] for cause because, she says, E.P. indicated that she was a good friend of Sheriff Heath Taylor and would place great weight on his testimony because she knew him to be truthful.

         The record shows that E.P. indicated during voir dire examination that she had been good friends with Sheriff Taylor for many years. The following occurred:

"[Defense counsel]: The fact that the Sheriff, he's -- he's the prosecuting agent on this case, he's going to be a witness in this case. The fact that you know him, and I assume you known him -- have known him over the years, would you be able to sit on a jury where he is a witness, where he is the prosecuting agent, and still be fair and impartial to Ms. Graham?
"[E.P.]: I can."

(R. 2047.) Later during voir dire, the following occurred:

"[Defense counsel]: You said that you have been close friends for a long time with Sheriff Taylor.
"[E.P.]: Yes, ma'am.
"[Defense counsel]: And that y'all would be maybe on a first name basis.
"[E.P.]: That's correct.
"[Defense counsel]: Do you think that if he's the case agent and he testified in this case, would you be more likely to give his testimony more weight than you would any other witness, like all other things being equal, just because you know him and are friends with him?
"[E.P.]: I can tell you that I trust him.
"[Defense counsel]: Well -- and that's my question. Would your knowledge of him and your opinion of him, would you tend to weigh that and take what he said over another witness that maybe you did not know their reputation, had not been friends with them?
"[E.P.]: I believe that I would.
"[Defense counsel]: Okay. And I know you said you would try to be fair.
"[E.P.]: Yes.
"[Defense counsel]: But that would be something that would just be natural?
"[E.P.]: I understand."

(R. 2085-87.) Immediately after the above exchange, defense counsel moved that E.P. be struck for cause. (R. 2087.) The circuit court denied Graham's challenge and indicated that placing more weight on Sheriff Taylor's testimony was not a sufficient reason to remove E.P. for cause. (R. 2093.) E.P. was not questioned further about her comments concerning the weight she would attach to Sheriff Taylor's testimony. However, E.P. did not serve on Graham's jury -- Graham used her second peremptory strike to remove E.P. (R. 2535.)

"To justify a challenge for cause, there must be a proper statutory ground or '"some matter which imports absolute bias or favor, and leaves nothing to the discretion of the trial court."' Clark v. State, 621 So.2d 309, 321 (Ala. Cr. App. 1992) (quoting Nettles v. State, 435 So.2d 146, 149 (Ala. Cr. App. 1983)). This court has held that 'once a juror indicates initially that he or she is biased or prejudiced or has deepseated impressions' about a case, the juror should be removed for cause. Knop v. McCain, 561 So.2d 229, 234 (Ala. 1989). The test to be applied in determining whether a juror should be removed for cause is whether the juror can eliminate the influence of his previous feelings and render a verdict according to the evidence and the law. Ex parte Taylor, 666 So.2d 73, 82 (Ala. 1995). A juror 'need not be excused merely because [the juror] knows something of the case to be tried or because [the juror] has formed some opinions regarding it.' Kinder v. State, 515 So.2d 55, 61 (Ala. Cr. App. 1986)."

Ex Parte Davis, 718 So.2d 1166, 1171-72 (Ala. 1998).

         This Court has recognized that

"'[a] juror ... who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve.' State v. Davenport, 445 So.2d 1190, 1194 (La. 1984). See also State v. Nolan, 341 So.2d 885 (La. 1977); State v. Thompson, 331 So.2d 848 (La. 1976); State v. Johnson, 324 So.2d 349 (La. 1975); State v. Jones, 282 So.2d 422 (La. 1973); State v. Williams, 643 S.W.2d 832, 834 (Mo. App. 1982). 'A juror who will not be governed by the established rules as to the weight and effect of the evidence is incompetent.' Watwood v. State, 389 So.2d 549, 550 (Ala. Cr. App.), cert. denied, Ex parte Watwood, 389 So.2d 552 (Ala. 1980)."

Uptain v. State, 534 So.2d 686, 687 (Ala.Crim.App.1988), abrogated on other grounds by Bethea v. Springhill Mem'l Hosp., 833 So.2d 1 (Ala. 2002).

         A prospective juror who responds that he or she will credit the testimony of a police officer more than the testimony of other witnesses may subsequently be rehabilitated; here, E.P. was asked no further questions. See Sharifi v. State, 993 So.2d 907, 926 (Ala.Crim.App.2008). E.P. should have been removed for cause based on her comments concerning the credibility of Sheriff's Taylor's testimony.

         However, the Alabama Supreme Court has recognized that the harmless-error rule applies to a circuit court's failure to remove a prospective juror for cause. In Bethea v. Springhill Memorial Hospital, 833 So.2d 1 (Ala. 2002), the Alabama Supreme Court returned to the harmless-error analysis when reviewing a circuit court's denial of a motion to remove a prospective juror for cause.

"The application of a 'harmless-error' analysis to a trial court's refusal to strike a juror for cause is not new to this Court; in fact, such an analysis was adopted as early as 1909:
"'The appellant was convicted of the crime of murder in the second degree. While it was error to refuse to allow the defendant to challenge the juror C.S. Rhodes for cause, because of his having been on the jury which had tried another person jointly indicted with the defendant, yet it was error without injury, as the record shows that the defendant challenged said juror peremptorily, and that, when the jury was formed the defendant had not exhausted his right to peremptory challenges.'
"Turner v. State, 160 Ala. 55, 57, 49 So. 304, 305 (1909). However, in Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court stated, in dicta, that '[t]he denial or impairment of the right is reversible error without a showing of prejudice.' (Emphasis added.) Some decisions of this Court as well as of the Alabama Court of Criminal Appeals reflect an adoption of this reasoning. See Dixon v. Hardey, 91 So.2d 3');">591 So.2d 3 (Ala. 1991); Knop v. McCain, 561 So.2d 229 (Ala. 1989); Ex parte Rutledge, 523 So.2d 1118 (Ala. 1988); Ex parte Beam, 512 So.2d 723 (Ala. 1987); Uptain v. State, 534 So.2d 686, 688 (Ala.Crim.App.1988) (quoting Swain and citing Beam and Rutledge); Mason v. State, 536 So.2d 127, 129 (Ala.Crim.App.1988) (quoting Uptain).
"... [T]his Court has returned to the 'harmless-error' analysis articulated in the Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and [United States v.] Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), decisions. Because a defendant has no right to a perfect jury or a jury of his or her choice, but rather only to an 'impartial' jury, see Ala. Const. 1901 § 6, we find the harmless-error analysis to be the proper method of assuring the recognition of that right.
"In this instance, even if the Betheas could demonstrate that the trial court erred in not granting their request that L.A.C. be removed from the venire for cause (an issue we do not reach), they would need to show that its ruling somehow injured them by leaving them with a less-than-impartial jury. The Betheas do not proffer any evidence indicating that the jury that was eventually impaneled to hear this action was biased or partial. Therefore, the Betheas are not entitled to a new trial on this basis."

Bethea, 833 So.2d at 6-7 (footnotes omitted). But see Ex parte Colby, 41 So.3d 1 (Ala. 2009); General Motors Corp. v. Jernigan, 883 So.2d 646 (Ala. 2003) (harmless-error analysis does not apply when the circuit court erroneously denies challenges for cause of multiple jurors).

         Other jurisdictions have also applied the harmless-error rule to a court's erroneous failure to remove a prospective juror for cause after that prospective juror was removed by a peremptory strike.

"[I]n State v. Barlow, we held that even if the failure to dismiss a juror for cause was erroneous, any error was cured by the defendant's exercise of a peremptory challenge to remove the juror. 541 N.W.2d 309, 312-13 (Minn. 1995). We noted that '[t]he peremptory [challenge] served the purpose for which it is intended and the potential juror did not serve on defendant's jury.' Id. at 312. We concluded that the necessity to exercise a peremptory challenge to strike a juror whom the district court had erroneously refused to remove for cause does not deprive the defendant of a fair trial. Id. at 311 (citing Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988))."

State v. Prtine, 784 N.W.2d 303, 311 (Minn. 2010). See also State v. King, 859 So.2d 649, 652 (La. 2003) ("Generally, an individual who will unquestionably credit the testimony of law enforcement officers over that of defense witnesses is not competent to serve as a juror."); State v. Bingham, 176 Ariz. 146, 147, 859 P.2d 769, 770 (1993) ("A juror's inclination to credit the testimony of police officers more than other witnesses is grounds for dismissing that juror."); State v. Stewart, 729 S.W.2d 246, 247 (Mo.Ct.App. 1987) ("[J]uror Larson indicated she would ... accord police testimony greater weight than that of other witnesses. ... [W]e are certain [the court] erred in refusing to strike Larson for cause.").

         In her brief, Graham argues that a harmless-error analysis should not apply in this case because, she says, she was sentenced to the ultimate penalty and is entitled to heightened scrutiny on this claim. However, this Court has repeatedly relied on the harmless-error rule in death-penalty cases involving the erroneous strike of a prospective juror for cause. See Henderson v. State, 248 So.3d 992 (Ala.Crim.App.2017); Scott v. State, 163 So.3d 389 (Ala.Crim.App.2012); Doster v. State, 72 So.3d 50 (Ala.Crim.App.2010); Hyde v. State, 13 So.3d 997 (Ala.Crim.App.2007).

         In a footnote, Graham further states: "As a result, Ms. Graham did not have strikes available to remove J.Z. and B.V., who both said they would expect Ms. Graham to testify and make her 'voice heard.'" (Graham's brief at p. 85 n. 23.) This is the entire argument on this claim. However, we have examined the record and find no evidence indicating that the jury that convicted Graham was biased or impartial. Accordingly, any error in the circuit court's failure to remove prospective juror E.P. for cause was harmless based on the Alabama Supreme Court's holding in Bethea v. Springhill Memorial Hospital. Graham is due no relief on this claim.


         Graham next argues that the State violated Batson v. Kentucky, 476 U.S. 79 (1986), by improperly using its peremptory strikes to remove African-American prospective jurors from her jury.

         The United States Supreme Court in Batson held that it was a violation of the Equal Protection Clause of the United States Constitution to strike an African-American individual from an African-American defendant's jury based solely on their race. This holding was extended to white defendants in Powers v. Ohio, 499 U.S. 400 (1991); to defense counsel in criminal cases in Georgia v. McCollum, 505 U.S. 42 (1992); and to gender in J.E.B. v. Alabama, 511 U.S. 127 (1994). The Alabama Supreme Court extended this holding to white prospective jurors in White Consolidated Industries, Inc. v. American Liberty Insurance, Inc., 617 So.2d 657 (Ala. 1993).

         Here, Graham did not make a Batson objection after the jury was selected. Thus, we review this issue for plain error. See Rule 45A, Ala. R. App. P.

"To find plain error in the Batson [v. Kentucky, 476 U.S. 79 (1986), ] context, we first must find that the record raises an inference of purposeful discrimination by the State in the exercise of its peremptory challenges. E.g., Saunders v. State, 10 So.3d 53, 78 (Ala.Crim.App.2007). Where the record contains no indication of a prima facie case of racial discrimination, there is no plain error. See, e.g., Gobble v. State, 104 So.3d 920, 949 (Ala.Crim.App.2010)."

Henderson v. State, 248 So.3d 992, 1016 (Ala.Crim.App.2017). See also Blackmon v. State, 7 So.3d 397, 425 (Ala.Crim.App.2005) (opinion on rehearing).[7]

"In [Ex parte] Branch, [526 So.2d 609 (Ala. 1987), ] this Court discussed a number of relevant factors ... to establish a prima facie case of racial discrimination; those factors are likewise applicable in the case of a defendant seeking to establish gender discrimination in the jury selection process. Those factors, stated in a manner applicable to gender discrimination, are as follows: (1) evidence that the jurors in question shared only the characteristic of gender and were in all other respects as heterogenous as the community as a whole; (2) a pattern of strikes against jurors of one gender on the particular venire; (3) the past conduct of the state's attorney in using peremptory challenges to strike members of one gender; (4) the type and manner of the state's questions and statements during voir dire; (5) the type and manner of questions directed to the challenged juror, including a lack of questions; (6) disparate treatment of members of the jury venire who had the same characteristics or who answered a question in the same manner or in a similar manner; and (7) separate examination of members of the venire. Additionally, the court may consider whether the State used all or most of its strikes against members of one gender."

Ex parte Trawick, 698 So.2d 162, 167-68 (Ala. 1997). "[N]umbers and statistics do not, alone, establish a prima facie case of racial discrimination." Petersen v. State, [Ms. CR-16-0652, January 11, 2019] So. 3d, (Ala.Crim.App.2019).

         Here, after prospective jurors were excused for cause, the venire consisted of 45 prospective jurors -- 20 African-American prospective jurors and 25 white prospective jurors. The State and Graham each had 15 peremptory strikes. The State used 12 or its strikes to remove African-American prospective jurors and 3 of its strikes to remove white prospective jurors.[8] Defense counsel used 14 of its strikes to remove white prospective jurors and used its last strike to remove an African-American prospective juror. Graham's jury was composed of five African-American jurors and seven white jurors.

         The record shows that the voir dire of the prospective jurors was extensive and consists of over 2, 100 pages of the record. (R. 393-2534.) Prospective jurors also completed juror questionnaires. (C. 280-301.)

         It is clear from the record that African-American prospective jurors D.D., T.R., J.S., L.M., T.L., and T.K. indicated on their juror questionnaires that they had close relatives that had convictions. African-American prospective jurors F.B., C.B., D.D., T.L., C.L., L.M., J.S., and S.R. indicated on their questionnaires that they had only a "fair" or "poor" opinion of lawyers. Prospective juror C.L. also indicated both during voir dire examination and in her questionnaire that she did not believe in the court system, and she appeared adamant about this view. (R. 531.) Prospective juror F.B. also stated that she would rather not sit on a death-penalty case, that she had a sister who had been murdered, that she had been the victim of a crime, and that she had heard about the case. African-American prospective juror R.H. indicated that she had previously served on a criminal jury. African-American prospective juror B.W. indicated that it would bother him if the defendant did not testify. Prospective juror B.W. also failed to answer a great deal of the questions in his questionnaire.

"The above reasons, which are readily discernible from the record, were all race-neutral reasons. 'The fact that a family member of the prospective juror has been prosecuted for a crime is a valid race-neutral reason.' Yelder v. State, 596 So.2d 596, 598 (Ala.Crim.App.1991). '[A] veniremember's connection with or involvement in criminal activity may serve as a race-neutral reason for striking that veniremember.' Wilsher v. State, 611 So.2d 1175, 1183 (Ala.Crim.App.1992). '"That a veniremember has reservations about the death penalty, though not sufficient for a challenge for cause, may constitute a race-neutral and reasonable explanation for the exercise of a peremptory strike."' Fisher v. State, 587 So.2d 1027, 1036 (Ala.Crim.App.1991)."

Bohannon v. State, 222 So.3d 457, 482 (Ala.Crim.App.2015). It is a valid race-neutral reason to strike a prospective juror who has a "'chip on her shoulder' regarding the judicial system." Zumbabo v. State, 615 So.2d 1223, 1232 (Ala.Crim.App.1993). "Failure to answer questions on a juror questionnaire is a race-neutral reason for a peremptory strike." Martin v. State, 62 So.3d 1050, 1063 (Ala.Crim.App.2010).

         "[T]he [Ex parte] Watkins[, 509 So.2d 1074 (Ala. 1987), ] Court established that when nothing in the record supports the bare allegation that a constitutional violation occurred, a court cannot find plain error." Ex parte Walker, 972 So.2d 737, 754 (Ala. 2007). Based on the record in this case, we cannot say that there was plain error in regard to Graham's Batson argument. Thus, Graham is due no relief on this claim.


         Graham next argues that the circuit court erred in allowing her conversation with her husband to be admitted into evidence because, she says, the conversation was a privileged conversation between a husband and wife. She cites Rule 504(b), Ala. R. Evid., and the United States Supreme Court case of Blau v. United States, 340 U.S. 332 (1951), to support her argument. Graham further argues that the conversation was the functional equivalent of a police interrogation; therefore, she asserts, the contents of the conversation were improperly admitted because Graham was not given her Miranda[9] rights before the start of the conversation.


         In Alabama, "the husband-wife privilege" is addressed in Rule 504, Ala. R. Evid. That rule provides, in pertinent part:

"(b) General Rule or Privilege. In any civil or criminal proceeding, a person has a privilege to refuse to testify, or to prevent any person from testifying, as to any confidential communication made by one spouse to the other during the marriage.
"(c) Who May Claim the Privilege. The privilege may be claimed by either spouse, the lawyer for either spouse in that spouse's behalf, the guardian or conservator of either spouse, or the personal representative of a deceased spouse. The authority of those named to claim the privilege in the spouse's behalf is presumed in the absence of evidence to the contrary."[10]

         The United States Supreme Court in Blau v. United States, 340 U.S. 332, 333 (1951), recognized that "martial communications are presumptively confidential" but the privilege may be waived.

         The record shows that after Walton confessed that Graham had solicited him to kill Shea the police interviewed Graham at the police station. Immediately before the interview, Kevin Graham, Graham's husband, asked if he could speak with Graham because, he said, he could get her to tell the truth about her involvement in their daughter's death. (R. 2585.) Kevin entered the interrogation room where Graham was located and the two had a lengthy discussion before police formally questioned Graham. (C. 1109-41.)

         Graham moved that the statements be suppressed because she "claimed marital privilege as to any conversations between she and her husband, Kevin Graham." (R. 160.) The prosecutor countered:

"The fundamental element for the privilege -- for marital privilege is that there is a confidentiality. When a -- conversation or a statement without regard to the privilege -- attorney/client position, patient, marital privilege, when that conversation is knowingly published their -- their confidentiality is extinguished. There is no confidentiality on that. It's clear that both Kevin Graham and Lisa Graham knew that this conversation was being video and audio recorded. It's also apparent that there are times during the course of that interview when Lisa Graham makes an attempt to whisper so that it will not be heard. It's absolutely apparent she knew that this conversation was being published. There is no confidentiality. There is no privilege."

(R. 2673-74.) The circuit court allowed the conversation to be admitted after it found clear indications that the privilege had been waived because, it found, the Grahams were both aware that their conversation was being recorded. (R. 2677.)

         In the conversation, Graham said that she met Walton at a library and gave him a gun. However, she said that she thought that Walton was going to use the gun to kill her husband's girlfriend -- Ieisha Hodge. The conversation consisted mostly of the two questioning why Graham was asked to the police station. Kevin indicated at one point that Walton killed Shea to get back at them after they had fired Walton.

         This Court in Johnson v. State, 584 So.2d 881 (Ala.Crim.App.1991), addressed a similar issue and held that there was no privilege because the conversation between the two spouses occurred in the presence of police. We stated:

"The appellant contends that the transcript of the conversation between him and his wife that occurred in the Albertville detectives' room in the presence of Detectives Edsel Whitten and Tommy Cole was introduced in violation of the marital privilege. Specifically, he argues that this transcript was improperly admitted because the police did not advise Mrs. Johnson of her marital privilege.
"However, the marital privilege for confidential communications has no application here. This court in Epps v. State, 408 So.2d 562, 565 (Ala. Cr. App. 1981), held that:
"'The privilege exists only for confidential communications or "acts performed with the confidence of the marriage in mind." Arnold v. State, 353 So.2d 524, 527 (1977). The marital communication loses its confidential character (and thus its privilege status) if it is made in the presence of third parties. Caldwell v. State, 146 Ala. 141, 41 So. 473 (1906).'
"See also Howton v. State, 91 So.2d 147');">391 So.2d 147 (Ala. Cr. App. 1980), which held that testimony of an investigator concerning contents of a letter defendant's wife had sent to defendant while he was incarcerated did not violate the rule governing privileged communications, in that such rule does not operate to exclude testimony of a third party who overheard ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.