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Commonwealth v. Graham

Court of Appeals of Kentucky

October 4, 2019



          BRIEFS FOR APPELLANT: Andy Beshear Attorney General of Kentucky Thomas A. Van De Rostyne Assistant Attorney General Frankfort, Kentucky

          BRIEF FOR APPELLEE: Melanie A. Foote Frankfort, Kentucky Amy Robinson Staples Shelbyville, Kentucky



          MAZE, JUDGE:

         The Commonwealth appeals from the Todd Circuit Court's order granting Norman Graham's motion to set aside, correct, or amend judgment pursuant to CR[1] 60.02, entered October 5, 2017. After careful consideration, we affirm the circuit court's order granting a new trial.

         I. Background

         Further details of this case may be found in the Kentucky Supreme Court's opinion on direct appeal. Graham v. Commonwealth, 319 S.W.3d 331 (Ky. 2010). At some point during the evening hours extending from June 29 to June 30, 1980, Kay Williams[2] was raped and murdered in her boyfriend's trailer at Tiny Town Trailer Park, in Todd County, Kentucky. Kay's boyfriend, Norman Graham, alleged he had been out drinking with his ex-wife at a bar the previous evening and was not home when Kay was attacked. According to Graham, he fell asleep in his vehicle in the bar parking lot, woke up after 4:00 a.m., and drove back to his trailer, where he discovered Kay's body. Her hands and feet had been bound with bootlaces, her throat had been cut, and she had been stabbed in the chest approximately twenty-five times. Her jumpsuit had been cut or torn away from her body, and she was positioned in the nude on the bed with her legs splayed out. Upon discovering the body, Graham alerted Kay's sister, who lived in the neighboring trailer, and they contacted the police. Investigators discovered semen inside Kay's vagina and on her jumpsuit, but forensic science at the time could not determine who the contributor was. Graham acknowledged he and Kay had engaged in sexual relations on the day leading up to the murder.

         The Commonwealth prosecuted Graham for Kay's murder in 1981, but the jury could not agree on a verdict, resulting in a mistrial. The Commonwealth elected to dismiss the indictment without prejudice. The case remained largely dormant for over twenty years. The case became active again when, in 2003, the Commonwealth reexamined the biological evidence using DNA testing. The semen recovered at the scene matched Graham's DNA to a statistical probability of one in 506 trillion individuals. Other suspects were excluded as contributors to the recovered DNA. In 2007, a Todd County grand jury indicted Graham for first-degree rape as well as murder. Graham was convicted on both counts at jury trial. On December 30, 2008, the trial court sentenced Graham to a concurrent term of forty years' imprisonment.

         Within a few months of conviction, Graham moved for a new trial pursuant to CR 60.02 and RCr[3] 10.06. As support, the motion alleged juror misconduct and the defense's receipt of sworn statements from witnesses who had not previously testified. The witness statements included two worth mentioning here. The first was Tina Rigsby, who was married to Roy Wayne Dean from approximately 1981 to 1982. Over the years, Dean had become a leading candidate as an alleged alternative perpetrator in Kay's murder. In 1984, Dean committed two separate and unrelated murders of women in the Todd County area. He is currently serving out a life sentence with the Kentucky Department of Corrections. Tina, who would later testify in the evidentiary hearing in the current matter, gave Graham's defense an affidavit relating the following incident:

Roy, for some unexplained reason, told me one day about the murder of a young lady and described it in, what I consider, great detail. I am in the medical profession, so I have knowledge of the body and trauma to it. He described the scene to me. He said the young girl was lying sprawled out on a bed with blood splattered all over her and the walls and the bed. He said she was nude. He said she was stabbed 30 to 32 times in the chest area. When I asked how he knew this, his only explanation was, well, he saw the crime scene. I believe the only explanation was that Roy Dean was the perpetrator of the crime and was at the scene and created the scene which he described. Based upon Roy Dean's statements to me, I strongly believe he committed the crimes of which Norm Graham stands accused.

         The second statement was from Graham's ex-wife, Sandra Burnette. As previously mentioned, Graham's alibi for the night of the murder was that he was spending time with his ex-wife at a bar. However, she was not called to testify in either trial. In her statement, Sandra asserts that, if she had been called as a witness, she would have testified to being with Graham until she left him in the bar parking lot in Clarksville, Tennessee, at approximately 3:00 to 4:00 a.m. Later, in a deposition she gave in 2008, Sandra said the drive back to Tiny Town from the bar would have taken approximately another thirty minutes, even if Graham had left immediately after she did. Based on her personal experience with him, Sandra did not believe Graham would commit this crime, and she further believed Graham could not have done so, because he was with her that night. She also expressed her willingness to testify as to these matters.

         The trial court denied Graham's motion for a new trial, finding the juror misconduct did not prejudice Graham to such an extent that he did not receive a fair trial. The trial court also found Tina's statement had little probative value, while Sandra's statement could have been offered at Graham's trial if the defense had exercised reasonable diligence in doing so. In addition, the trial court found Sandra's statement was "inconsistent with the statement she gave officers on December 5, 1980, wherein she stated . . . she parted company with the defendant in Clarksville, Tennessee at an unknown time in the early hours of the date in question." Ultimately, the trial court held Graham "failed to demonstrate that if Sandra Burnette were permitted to testify at a new trial, there is a reasonable certainty that the result would be different."

         Graham's conviction was upheld in his direct appeal to the Kentucky Supreme Court. Graham, 319 S.W.3d 331. He subsequently moved the trial court for relief pursuant to RCr 11.42, asserting ineffective assistance of counsel. The trial court denied the RCr 11.42 motion, and we upheld the trial court's ruling on appeal. Graham v. Commonwealth, No. 2012-CA-002181-MR, 2015 WL 7822146 (Ky. App. Dec. 4, 2015), as modified on denial of reh'g (Ky. App. June 24, 2016), disc. rev. denied (Ky. Oct. 13, 2016). Of note, our previous opinion disagreed with the trial court's assessment that there was no reason to suspect Dean was a viable suspect in Kay's murder. We opined that Kay's murder bore a significant resemblance to the murders for which Dean is currently incarcerated:

Dean is a suspected serial killer who lived in the same trailer park at the time of the victim's murder. There were numerous similarities between the murders, which the detective in the case noted in his Uniform Offense Report. These similarities include: overkill, rape, bound wrists, similar positions, and nudity of the victims. The only dissimilarity was the weapon used to murder the victims. Graham's contention that Roy Dean should have been offered as an alternate suspect is clearly not "without a minimum factual basis."

Id. at *4. Nevertheless, we upheld the trial court's ruling, stating that "[e]ven if trial counsel's failure to present Roy Wayne Dean as an alternative suspect was deficient, given that none of Dean's DNA was ever linked to the crime scene, we cannot say that it was prejudicial." Id.

         Graham subsequently filed two concurrent CR 60.02 motions, and these motions were heard by the assigned special judge. Graham's first motion, filed on August 1, 2016, alleged his convictions for rape and murder should be vacated because the Commonwealth had dismissed the rape charge against him with prejudice in 1981, so it was erroneous to charge and convict him of that offense in his 2008 trial. Before the trial court could rule on the motion, however, Graham made a separate motion for relief under CR 60.02 and RCr 10.02. This second motion asserted new evidence had surfaced against Dean as the actual perpetrator of the crime, in the form of two eyewitnesses who saw Dean outside Graham's trailer on the night of the murder. The witnesses, Renee Dean and Barbara Keaton, were young teenagers at the time of the murder and had not been questioned by police during the investigation. Although the details of their statements differ, as discussed below, both women assert they heard a woman's scream that night and then saw Dean running from the area behind Graham's trailer. This Court is currently holding Graham's first motion in abeyance pending the outcome of his second motion in the case sub judice.

         The trial court held a two-day evidentiary hearing, on April 24 and June 12, 2017, to receive Graham's new evidence. The trial court also considered Dean's deposition, which was taken on June 27, 2017. Finally, when counsel began to repeat facts and issues which were raised previously, the trial court kept the hearing focused on the new testimony by informing counsel he had examined the history and the record in this case in great detail. As a result, the trial court was very well prepared to thoroughly consider the matter.

         In the April 24, 2017, evidentiary hearing, the first witness of note to testify was Dean's former spouse, Tina Rigsby. Tina's testimony provides valuable background on Dean as a viable alleged alternative perpetrator for Kay's murder. Tina testified as to the incident, related supra, wherein Dean described the scene of Kay's murder as though he had personal knowledge of it. Tina admitted she was not involved with Dean when Kay was killed, so she had no direct knowledge of his activities during that time period. However, she described a subsequent incident in which she accompanied Dean's family to visit him while he was incarcerated. According to Tina, Dean asked his father, "Daddy, didn't I kill something in Tiny Town once?" Dean's father replied, "Yeah, son, but that was dogs." Upon leaving, Dean's grandmother disputed the "dogs" statement, but the Commonwealth objected to Tina's further recollection of the conversation on hearsay grounds.

         In a rather disturbing vignette from when they were dating, Tina described an incident in which she went fishing with Dean. He began repeatedly stabbing a catfish and laughing. Tina said, "I mean, he just kept stabbing and stabbing and stabbing, and laughing and stabbing. And I'm just-it scared me." Responding to counsel's questioning on the point, Tina made it very clear that Dean was not cleaning the fish.

         Tina testified how she thought Dean was not law-abiding when they were married, but now believes he is guilty of far worse than she originally imagined. Tina explained how, during their marriage, she supposed Dean was merely a thief, because he would come home with odd scratches on his arms, blood on his pants, and, on one occasion, she found women's wedding rings in Dean's pockets when she did laundry. In retrospect, Tina believed these things were connected to women who disappeared from the areas where Dean lived. She explained to the court how the local newspaper showed murdered and missing area women from 1980 to 1984, aside from Kay, but the incidents stopped once Dean was imprisoned in 1984. The Commonwealth objected to the testimony as non-responsive, but the trial court asked for clarification: "In other words, if I look at the Todd County paper, 1980 to 1984, I might find reference to people missing? Is that what you're telling me?" When defense counsel confirmed this to be Tina's impression, the trial court overruled the Commonwealth's objection. Tina testified how she kept track of Dean and his parole status because she would be afraid of him if he were to be released. Finally, when defense counsel asked Tina why she was testifying, she simply stated, "With all due respect to the Commonwealth of Kentucky, I believe you have an innocent man in the penitentiary."

         Lisa Potter and Danny Moles each testified at the evidentiary hearing, and their testimonies explained how the new eyewitness accounts were discovered in this case. Lisa Potter is a friend and advocate for Graham, and she described herself as "devastated" by his conviction. She has worked tirelessly to exonerate Graham following his conviction and sentence. Danny Moles is Lisa's friend, and he also happens to be Dean's second cousin.[4] Danny and Lisa had discussed the case, and both believed Graham to be innocent. Danny had recently heard Dean's father talk about the night Kay was murdered and had learned Dean had apparently come home with bloody clothing that evening and said, "dogs got after him." However, according to the account Danny had heard from Dean's father, there were no cuts on Dean's body after the alleged dog attack, and Dean took the bloody clothing to the dumpster after changing clothes. Danny testified to his belief that Dean was responsible for the murder, saying "there's nothing [Dean] wouldn't do."

         Lisa had long wanted to speak to Dean's family in order to ask them if Dean had anything to do with Kay's murder. However, Danny refused to take Lisa to see the family while Dean's mother, Patsy, was alive. Patsy Dean was very protective of her son and would not allow anything to be said against him; therefore, a meeting with the Deans would not have been productive. Danny implied Patsy may even have attacked Lisa if she had dared ask those questions. After Patsy died in 2014, Danny finally agreed to take Lisa to visit the Dean family, which they did in a series of meetings. The dates of the meetings are not clear from the record, but Danny and Lisa appear to have met with the Deans three or four times in 2016.

         Lisa testified she originally intended to speak to Dean's father about the case, and she was unaware that Dean had a younger sister, Renee Dean. Lisa met Renee during her first meeting with the Deans. During her second meeting with the family, Renee told Lisa she heard screams on the night of the murder. However, Renee also said Dean had written to the family and told them he would be getting out of prison. Sensing Renee perhaps had more information to give, Lisa took documentation to her third meeting with Renee which showed that the parole board had ordered Dean to serve out his life sentence; he would not be released. Lisa once again asked Renee if she knew anything about the case. With the knowledge that Dean would not be coming home, Renee spoke freely about the night of Kay's murder. She gave Lisa a notarized affidavit the next day, and Lisa sent it to the Kentucky Innocence Project (KIP). The KIP investigator followed up on Renee's affidavit and found a second witness, Barbara Keaton, who was with Renee on the night of Kay's murder and could largely corroborate her account.

         On the evening of June 29, 1980, Renee Dean was approximately thirteen years old and living with her parents and siblings in Tiny Town Trailer Park. Her older brother was eighteen-year-old Roy Wayne Dean. That night, she was breaking curfew with her cousins, Barbara Keaton (then fourteen-year-old Barbara Dean) and Connie Powell (then twelve-year-old Connie Dean). According to Renee, curfew was at 9:30 or 10:00 p.m., but the girls would simply wait for the adults to go to sleep before sneaking outside. Renee, Barbara, and Connie were playing hide-and-seek in the area around the trailer owned by Connie and Barbara's parents. Neither Renee nor Barbara could testify as to exactly what time of night they were outside, but they both recall that it was after dark. The trial court took judicial notice of official data by the United States Naval ...

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