from Russell Circuit Court (CC-07-686)
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.
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.
"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."
3075.) Both shots to Shea's head were fatal wounds, Dr.
Boudreau said. (R. 3078.)
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.Kevin also testified that he had given
Graham a gun and that she kept that gun in the console of her
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
"[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."
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.)
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
"[Walton]: It meant I had been hiding stuff from her and
she wanted me to do her a favor by killing her daughter in
"[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
(R. 2945-47.) Forensic tests showed that the bullets that
killed Shea were fired from the gun that Walton got from
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.
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.
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.)
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. This appeal, which is automatic in a case
involving the death penalty, followed. See §
13A-5-55, Ala. Code 1975.
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."
discussing the scope of Rule 45A, the Alabama Supreme Court
"'"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. , 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.
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.
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
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
 at 1245 [(Ala. 1985)] (quoting Barker [v.
Wingo], 407 U.S.  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.
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.
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
"'[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.
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:
time commences to run.
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
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.  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
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
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
Reasons for the Delay.
September 25, 2012, a mistrial was declared by Judge George
R. Greene. Thereafter, Judge Greene was granted a leave of
absence for medical reasons.
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).
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
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
Assertion of Right.
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.)
Prejudice to Defendant.
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
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.
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.
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.
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
"Graham failed to meet her heavy burden of establishing
a clear legal right to the issuance of a writ of
of October 2, 2013.)
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.
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
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.
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
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
"The Federal Courts have adopted a similar
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).
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.
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
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
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. ...").
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
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.
Graham's first trial, the circuit court granted
Graham's motion to suppress because, it ruled, the
conversation was protected by marital
privilege. 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,
"'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
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
circuit court did not abuse its considerable discretion in
issuing a different ruling on this issue during the
retrial. 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.
Graham argues that death-qualifying the prospective jurors
resulted in a conviction-prone jury and disproportionately
excluded minorities and women.
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).
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.
next argues that the circuit court erred in refusing to
remove prospective juror E.P. 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.
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.
"[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).
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
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
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
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).
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
"[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.").
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
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.
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.
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).
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
"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,
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. 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
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.)
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
[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.
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 rights before the start of the
Alabama, "the husband-wife privilege" is addressed
in Rule 504, Ala. R. Evid. That rule provides, in pertinent
"(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."
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.
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.)
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.
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.
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