Petition for Writ of Certiorari — Lisa Graham, Petitioner v. Alabama

Supreme Court briefJun 15, 2020

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Appendix A

Graham v. State, --- So.3d ---- (2019)

Cole, J., recused himself.

2019 WL 3070058

Only the Westlaw citation is currently available.

NOT YET RELEASED FOR PUBLICATION.

Court of Criminal Appeals of Alabama.

Lisa Leane GRAHAM

STATE of Alabama

CR-15-0201

July 12, 2019

Synopsis

Background: Defendant was convicted on retrial in the

Circuit Court, Russell County, CC-07-686, of capital murder,

and was sentenced to death, after her first trial ended in a

mistrial. She appealed.

Holdings: The Court of Criminal Appeals, Kellum, J., held

that:

defendant was not denied constitutional right to speedy trial

as result of 29-month delay between mistrial and her second

trial;

manifest necessity existed to warrant declaring mistrial and,

thus, retrial of defendant did not violate double jeopardy;

prospective juror who indicated during voir dire that she was a

good friend of testifying sheriff and would place great weight

on his testimony because she knew him to be truthful was

subject to being struck for cause;

trial court's error in failing to strike prospective juror for cause

was harmless; and

evidence was sufficient to support finding of “pecuniary gain”

needed for conviction.

Affirmed.

Minor, J., concurred specially, with opinion, which Windom,

P.J., and McCool, J., joined.

Appeal from Russell Circuit Court (CC-07-686); Jacob A.

Walker III, Judge.

Attorneys and Law Firms

Charlotte R. Morrison and Claudia B. Flores, Montgomery;

Robert G. Poole, Opelika; and Margaret Y. Brown, Auburn,

for appellant.

Luther Strange and Steve Marshall, attys. gen., and Stephen

M. Frisby (withdrew 01/11/2019) and Audrey K. Jordan, asst.

attys. gen., for appellee.

Opinion

KELLUM, Judge.

*1 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.”

Graham v. State, --- So.3d ---- (2019)

(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.

*2 “[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.”

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?

“....

(R. 2919-20.)

“[Prosecutor]: Did you expect anything else?

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,

Graham v. State, --- So.3d ---- (2019)

“[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.)

*3 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, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the

United States Supreme Court, construing the federal plainerror rule, stated:

“ ‘The Rule authorizes the Courts of Appeals to

correct only “particularly egregious errors,” United

States v. Frady, 456 U.S. 152, 163 [102 S.Ct. 1584,

71 L.Ed.2d 816] (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 [56 S.Ct. 391, 80 L.Ed. 555

(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 plainerror doctrine is to be ‘used sparingly, solely in those

circumstances in which a miscarriage of justice would

otherwise result’ (internal quotation marks omitted)).”

*4 Ex parte Brown, 11 So. 3d 933, 938 (Ala. 2008).

Graham v. State, --- So.3d ---- (2019)

“ ‘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 fourprong test announced by the United States Supreme Court in

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

(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. 1995) ] (quoting

Barker [v. Wingo], 407 U.S. [514] at 530, 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).”

*5 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

Graham v. State, --- So.3d ---- (2019)

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. App. 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

*6 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 [ (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) (31month 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. 1995) (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

Graham v. State, --- So.3d ---- (2019)

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 17page 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), 194 So. 3d

991 (Ala. 2014)(table).

*7 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 (Ala. 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

Graham v. State, --- So.3d ---- (2019)

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.’

*8 “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. 3d 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. 3d 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., Judgment 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.

*9 “[T]he accused may be subjected to a second trial only

where the prosecutor can demonstrate manifest necessity for

Graham v. State, --- So.3d ---- (2019)

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, 98 S.Ct. 824,

54 L.Ed.2d 717 (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. ...”).

*10 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.

II.

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

Graham v. State, --- So.3d ---- (2019)

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, 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.

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.

III.

*11 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, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), held that

prospective jurors in a capital-murder case may be “deathqualified.” 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, 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-deathqualified 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 ... deathqualifying 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.

IV.

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.

Graham v. State, --- So.3d ---- (2019)

“[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.

*12 “[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.

*13 “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,

Graham v. State, --- So.3d ---- (2019)

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, 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-thanimpartial 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)).”

*14 State v. Prtine, 784 N.W.2d 303, 311 (Minn. 2010).

See also State v. Kang, 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).

Graham v. State, --- So.3d ---- (2019)

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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),

by improperly using its peremptory strikes to remove AfricanAmerican 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, 111 S.Ct. 1364, 113 L.Ed.2d

411 (1991); to defense counsel in criminal cases in Georgia

v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d

33 (1992); and to gender in J.E.B. v. Alabama, 511 U.S.

127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (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

*15 “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 AfricanAmerican 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

Graham v. State, --- So.3d ---- (2019)

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. AfricanAmerican 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.

*16 “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 raceneutral 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.” Zumbado 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.

VI.

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, 71 S.Ct. 301, 95

L.Ed. 306 (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, 71 S.Ct. 301, 95 L.Ed. 306 (1951),

recognized that “martial communications are presumptively

confidential” but the privilege may be waived.

*17 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

Graham v. State, --- So.3d ---- (2019)

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 ([Ala.]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, 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 private conversation, even if such conversation

was overheard while spying or eavesdropping.

*18 “In this case, the conversation was not private. It was

a conversation in the open presence of Detectives Whitten

and Cole.

“Furthermore, the record reveals that at some point Mrs.

Johnson had been advised of her rights: ‘They read me my

rights and I had no idea what for.’ (R. 783.) See McCoy

v. State, 221 Ala. 466, 129 So. 21 (1930), holding that

prior voluntary testimony at a preliminary hearing by the

nonaccused spouse, although made without having been

advised of her privilege not to testify, may be admitted

through a third party who heard this testimony even where

the spouse invokes the privilege not to testify at the

subsequent trial.”

584 So. 2d at 885. Graham argues that Johnson does not apply

in this case because, she says, the police were not in the same

room when she and her spouse were talking.

However, the question is not whether a third party was

present with Graham and her husband but whether Graham

had any expectation of privacy in the conversation she

had with her husband. “[C]ourts have generally found

no ‘reasonable expectation of privacy’ for overheard or

monitored conversations in police cars, police interview

rooms, or in prisons.” State v. Howard, 728 A.2d 1178,

1182 (Del. Super. Ct. 1998) (footnotes omitted). “If

Graham v. State, --- So.3d ---- (2019)

the communication is made with the contemplation or

expectation that a third party will learn of it, the confidential

communication privilege does not apply.” Matthews v. State,

89 Md. App. 488, 502, 598 A.2d 813, 820 (1991).

“Whether defendant's communications with his wife while

at the Onslow County Sheriff's Department were protected

by this privilege hinges on whether those statements

constitute confidential communications. To qualify as a

confidential marital communication under N.C. Gen. Stat.

§ 8–57(c), the communication must be one that was

‘induced by the marital relationship and prompted by

the affection, confidence, and loyalty engendered by such

relationship.’ [State v. Freeman,] 302 N.C. 591[, 598],

276 S.E.2d 450[, 454] (1981) (citations omitted). There

must also be ‘[1] a reasonable expectation of privacy

on the part of the holder and [2] the intent that the

communication be kept secret.’ State v. Rollins, 363 N.C.

232, 238, 675 S.E.2d 334, 338 (2009). In determining

whether a reasonable expectation of privacy existed, ‘[t]he

circumstances in which the communication takes place,

including the physical location and presence of other

individuals’ are taken into account. Id. at 237, 675 S.E.2d

at 337 (citation omitted).

“....

“In State v. Rollins, our Supreme Court held that

conversations between a husband and wife in the public

visiting area of a correctional facility did ‘not qualify

as confidential communications under section 8–57(c).’

363 N.C. at 235, 675 S.E.2d at 336. The Supreme Court

further held that ‘incarcerated persons have a diminished

expectation of privacy.’ Id. at 239, 675 S.E.2d at 338. The

New York case of Lanza v. New York[, 370 U.S. 139

(1962),] was cited for the proposition that ‘to say that a

public jail is the equivalent of a man's ‘house’ or that it is

a place where he can claim constitutional immunity from

search or seizure ... is at best a novel argument.... In prison,

official surveillance has traditionally been the order of the

day.’ Rollins, 363 N.C. at 239, 675 S.E.2d at 339 (citing

Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8

L.Ed.2d 384, 388–89 (1962)).

*19 “ ‘The rationale that the spouses may ordinarily

take effective measures to communicate confidentially

tends to break down where one or both are

incarcerated. However, communications in the jailhouse

are frequently held not privileged, often on the theory

that no confidentiality was or could have been expected.’

“Rollins, 363 N.C. at 240, 675 S.E.2d

at 339 (citing Kenneth S. Broun et

al., McCormick on Evidence § 82 (6th

ed. 2006)). In the instant case, both

defendant and his wife had been placed

under arrest and were in an interview

room. There were warning signs in

the Sheriff's Department that the

premises were under audio and visual

surveillance. There were cameras

and recording devices throughout

the Sheriff's Department, and in

the conference room. Given these

undisputed findings of fact, they

support the trial court's conclusion that

defendant and his wife did not have

a reasonable expectation of privacy in

the interview room.”

State v. Terry, 207 N.C. App. 311, 314-17, 699 S.E.2d 671,

674-76 (2010).

Here, immediately after entering the interview room to speak

to his wife, Kevin asked why they were in a room by

themselves. Graham answered: “Because they're recording

everything we're saying.” (C. 1111.) A little later Graham

asked why some lights in the room were on and Kevin said: “I

don't know. I was looking to see if there was a camera in them

and couldn't see one.” (C. 1131.) Graham then responded:

“Yeah. There's one in behind it. I seen old doofas [sic] in there

putting a tape in there so he can record everything.” (C. 1131.)

At one point the Grahams are whispering. It is abundantly

clear that both Graham and her husband were aware that their

conversation was not “confidential” but, in fact, was being

recorded. The circuit court's ruling finding that the marital

privilege had been waived is more than supported by the

record. Graham is due no relief on this claim.

Graham further argues that her conversation with her husband

was the functional equivalent of a police interrogation and

that, therefore, she should have been advised of her Miranda

rights before the conversation took place.

Graham v. State, --- So.3d ---- (2019)

“ ‘Interrogation’ is not limited to express questioning of

a suspect while in custody. ... The concept also embraces

any words and conduct of the police that are the functional

equivalent of interrogation.” Benjamin v. State, 116 So. 3d

115, 121-22 (Miss. 2013). If questioning is the equivalent of

an interrogation, Miranda warnings are necessary.

This Court recently addressed a similar issue and stated:

“The United States Supreme Court addressed this issue

more fully in Arizona v. Mauro, 481 U.S. 520, 107 S.Ct.

1931, 95 L.Ed.2d 458 (1987), when considering whether

the police had interrogated Mauro within the meaning of

Miranda [v. Arizona, 384 U.S. 436 (1966),] and [Rhode

Island v.] Innis[, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d

297 (1980),] when they permitted him to speak with his

wife in the presence of an officer. The Court stated that ‘[i]n

deciding whether particular police conduct is interrogation,

we must remember the purpose behind our decisions in

Miranda and Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct.

1880, 68 L.Ed.2d 378 (1981) ]: preventing government

officials from using the coercive nature of confinement

to extract confessions that would not be given in an

unrestrained environment.’ Arizona v. Mauro, 481 U.S. at

529–30. The Court further stated:

*20 “ ‘One of the questions frequently presented in

cases in this area is whether particular police conduct

constitutes “interrogation.” In Miranda, the Court

suggested in one passage that “interrogation” referred

only to actual “questioning initiated by law enforcement

officers.” 384 U.S. at 444. But this statement was

clarified in Rhode Island v. Innis, [446 U.S. 291 (1980) ].

In that case, the Court reviewed the police practices

that had evoked the Miranda Court's concern about

the coerciveness of the “ ‘interrogation environment.’

” 446 U.S. at 299 (quoting Miranda, supra, at 457).

The questioned practices included “the use of lineups

in which a coached witness would pick the defendant

as the perpetrator ... [,] the so-called ‘reverse line-up’

in which a defendant would be identified by coached

witnesses as the perpetrator of a fictitious crime,” and a

variety of “psychological ploys, such as to ‘posi[t]’ ‘the

guilt of the subject,’ to ‘minimize the moral seriousness

of the offense,’ and ‘to cast blame on the victim or on

society.’ ” 446 U.S. at 299 (quoting Miranda, supra, at

450) (brackets by Innis Court). None of these techniques

involves express questioning, and yet the Court found

that any of them, coupled with the “interrogation

environment,” was likely to “ ‘subjugate the individual

to the will of his examiner’ and thereby undermine the

privilege against compulsory self-incrimination.” 446

U.S. at 299 (quoting Miranda, supra, at 457). Thus, the

Innis Court concluded that the goals of the Miranda

safeguards could be effectuated if those safeguards

extended not only to express questioning, but also

to “its functional equivalent.” 446 U.S. at 301. The

Court explained the phrase “functional equivalent” of

interrogation as including “any words or actions on the

part of the police (other than those normally attendant

to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response

from the suspect.” Ibid. (footnotes omitted). Finally, it

noted that “[t]he latter portion of this definition focuses

primarily upon the perceptions of the suspect, rather than

the intent of the police.” Ibid.’

“Arizona v. Mauro, 481 U.S. at 526–27.

“The United States Supreme Court reversed the judgment

of the Arizona Supreme Court, which had held that the

tape recording of the conversation Mauro had with his wife

should not have been admitted at trial. The Court stated that

Mauro had not been subjected to the functional equivalent

of interrogation and noted that, during the couple's brief

conversation, the police officer asked Mauro no questions

about the crime and that the decision to allow Mauro's wife

to see him was not ‘the kind of psychological ploy that

properly could be treated as the functional equivalent of

interrogation.’ 446 [481] U.S. at 527 (footnote omitted).

The Court also stated that examination of the police

officers' actions from Mauro's perspective, as suggested

by Innis, indicated that it was unlikely that Mauro felt

he was being coerced into incriminating himself when

his wife was permitted to speak with him. Finally, the

Court held that, even though the officers testified that they

knew it was possible that Mauro would incriminate himself

if they permitted the couple to speak with one another,

there was no interrogation. The Court stated: ‘Officers do

not interrogate a suspect simply by hoping that he will

incriminate himself.’ 446 [481] U.S. at 529.”

Largin v. State, 233 So. 3d 374, 395-97 (Ala. Crim. App.

2015).

There is no evidence indicating that police used Graham's

husband as a ploy to make Graham confess. Indeed, she did

not confess during her conversation with her husband. Also,

it is clear that Kevin asked to speak to his wife before she was

questioned and was not asked or coerced to speak to Graham

Graham v. State, --- So.3d ---- (2019)

by police. The conversation between Graham and her husband

was not the functional equivalent of a police interrogation.

Therefore, Miranda warnings were not necessary. Graham is

due no relief on this claim.

VII.

Graham next argues that the circuit court erred in denying her

motion to suppress her statements to police. Specifically, she

argues that the statements were not voluntary because she did

not waive her right to counsel and, at the time she gave her

statements, she was exhausted, confused, and on medication.

The record shows that Graham moved to suppress her

statements to police. (C. 160-161.) 11 In that motion, she

argued that the statements should be suppressed because they

were involuntary. A suppression hearing was held. (R. 2573.)

At this hearing, Sheriff Heath Taylor testified that on July 6,

2007, he met with Graham and her husband to inform them

that their daughter's body had been discovered and that their

daughter had been murdered. (R. 2580.) The next day, Sheriff

Taylor met with Kenny Walton, and Walton confessed that he

had been hired by Graham to kill Graham's daughter. After

that interview, police contacted Graham and she voluntarily

came to the police station with her husband, Kevin. Graham

was placed in an interview room, and police were going to

talk to Graham when Kevin asked police if he could go talk

with her. (R. 2585.) About 30 minutes after Kevin entered

the room to talk to Graham, Sheriff Taylor entered the room

with a standard waiver-of-rights form. As soon as he entered

the room, Sheriff Taylor said, Graham started discussing the

case. He told her that he could not talk to her until she had

been notified of and waived her Miranda rights. (R. 2590.)

A waiver-of-rights form was admitted into evidence, and it

was signed by Graham. Sheriff Taylor said that, at the time

she signed the form, Graham did not appear to be under the

influence of any drugs and appeared to understand her rights.

He also testified that he did not offer Graham any inducement

to make a statement. Sheriff Taylor testified as follows:

*21 “[Prosecutor]: Did Lisa Graham at any time request

of you that she be given the opportunity to call a lawyer or

have a conference with or -“[Taylor]: No, sir, she -“[Prosecutor]: -– or have a lawyer present?

“[Taylor]: No, sir, she didn't.”

(R. 2591.)

Police interviewed Graham a second time on the evening of

July 8 after she was formally arrested. That interview was

conducted by Officer Grover Goodrich and Sgt. Rod Costello.

(R. 2595.) Sheriff Taylor said that an officer came to his office

during the interview to tell him that Graham wanted to talk to

him “to tell me the truth.” (R. 2597.) During that interview,

Sheriff Taylor said, Graham never indicated that she wanted

to speak with a lawyer. (R. 2599.) Sheriff Taylor testified as

follows:

“[Prosecutor]: Other than -– other than that statement, and

I am paraphrasing, if Jim McKoon [ 12 ] -–if Jim McKoon

knew I signed [the waiver-of-rights form], he would shit a

gold brick. Did she ever mention a lawyer?

“[Taylor]: Well, I -– I don't know if

it was the first or second interview,

but I do remember another instance

of her saying something about Mr.

McKoon, and that was when she

brought up what meds she was on,

and she said I can give you two

people to verify my meds; one was

Dr. [Edward] Lammons, [Graham's

former physician,] and she said you

know the other person, and that's Jim

McKoon.”

(R. 2621.)

Grover Goodrich, a former investigator with the Russell

County Sheriff's Department, testified that he was involved in

investigating the homicide. He testified that on July 8, 2007,

he administered Miranda rights to Graham. Goodrich said that

Graham initialed each page of and signed the waiver-of-rights

form. According to Goodrich, the statement Graham gave was

audiotaped and videotaped, he did not offer her any promises

or inducements, and the interview lasted a couple of hours.

Goodrich testified:

“[Prosecutor]: Did [Graham] appear to you to be lucid in

every way?

“[Goodrich]: Oh, yes, sir, she was.

Graham v. State, --- So.3d ---- (2019)

“[Prosecutor]: Respond to your questions -– your questions

-– as well as you could tell respond to them indicating that

she understood them?

“[Goodrich]: Yes, sir.”

(R. 2644.) Goodrich stated, at some point, that the interview

was “paused” and he was relieved by Sgt. Rod Costello.

Sgt. Costello of the Russell County Sheriff's Department

testified that he had observed the interview between Goodrich

and Graham. After Goodrich left the interview room, Sgt.

Costello said, he went into the room and spoke to Graham

for about 10 minutes. He said that Graham told him that she

wanted to speak with Sheriff Taylor “and tell him the whole

truth and everything that happened.” (R. 2872.)

*22 In Graham's second statement, she said that she met

Walton at a library, that it was Walton's idea to get rid of

Shea by killing her, and that the gun Walton used was hers.

However, she said that she did not think that Walton was

serious about killing Shea and that she thought he would not

go through with the killing.

In reviewing a circuit court's ruling on a motion to suppress

a confession, we apply the standard adopted by the Alabama

Supreme Court in McLeod v. State, 718 So. 2d 727 (Ala.

1998):

“For a confession, or an inculpatory statement, to be

admissible, the State must prove by a preponderance of

the evidence that it was voluntary. Ex parte Singleton, 465

So. 2d 443, 445 (Ala. 1985). The initial determination is

made by the trial court. Singleton, 465 So. 2d at 445. The

trial court's determination will not be disturbed unless it is

contrary to the great weight of the evidence or is manifestly

wrong. Marschke v. State, 450 So. 2d 177 (Ala. Crim. App.

1984). ...

“It has long been held that a confession, or any inculpatory

statement, is involuntary if it is either coerced through

force or induced through an express or implied promise of

leniency. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183,

42 L.Ed. 568 (1897). In Culombe [v. Connecticut], 367

U.S. [568] at 602, 81 S.Ct. [1860] at 1879 [6 L.Ed.2d 1037

(1961) ], the Supreme Court of the United States explained

that for a confession to be voluntary, the defendant must

have the capacity to exercise his own free will in choosing

to confess. If his capacity has been impaired, that is, ‘if his

will has been overborne’ by coercion or inducement, then

the confession is involuntary and cannot be admitted into

evidence. Id. (emphasis added).

“The Supreme Court has stated that when a court is

determining whether a confession was given voluntarily it

must consider the ‘totality of the circumstances.’ Boulden

v. Holman, 394 U.S. 478, 480, 89 S.Ct. 1138, 1139–40,

22 L.Ed.2d 433 (1969); Greenwald v. Wisconsin, 390 U.S.

519, 521, 88 S.Ct. 1152, 1154, 20 L.Ed.2d 77 (1968); see

Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 191,

19 L.Ed.2d 35 (1967). Alabama courts have also held that

a court must consider the totality of the circumstances to

determine if the defendant's will was overborne by coercion

or inducement. See Ex parte Matthews, 601 So. 2d 52, 54

(Ala.) (stating that a court must analyze a confession by

looking at the totality of the circumstances), cert. denied,

505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992);

Jackson v. State, 562 So. 2d 1373, 1380 (Ala. Crim. App.

1990) (stating that, to admit a confession, a court must

determine that the defendant's will was not overborne by

pressures and circumstances swirling around him); Eakes v.

State, 387 So. 2d 855, 859 (Ala. Crim. App. 1978) (stating

that the true test to be employed is ‘whether the defendant's

will was overborne at the time he confessed’) (emphasis

added).”

718 So. 2d at 729 (footnote omitted). See also Ex parte

Landrum, 57 So. 3d 77, 83 (Ala. 2010); Ex parte Woods, 789

So. 2d 941, 946 (Ala. 2001).

Graham first argues that her statements were involuntary

because, she says, she made several references to an attorney

and the police should have followed up on whether Graham

wanted an attorney present for questioning.

Here, Graham did not specifically ask for counsel, although

she did mention the word attorney during questioning. When

Sheriff Taylor first entered the interrogation room occupied

by Graham and her husband, the following occurred:

*23 “[Graham]: Do you want me to tell you what I know?

“[Sheriff Taylor]: Well, hold on. No, I don't want you to

tell me yet.

“[Graham]: My attorney would shit a gold brick if he knew

I signed one of them [a waiver-of-rights form].

Graham v. State, --- So.3d ---- (2019)

“[Sheriff Taylor]: Well, but the problem is, I understand

that, but you've got to make the decision whether you want

to talk to me about this case and you want me to tell you

what I've been told.

“[Graham]: Kenny called and told me

he is pinning it on me.”

(R. 1142) (emphasis added). Moments later, the following

occurred:

“[Sheriff Taylor]: This says no promise or threats have been

made to you, no pressure of any kind, you further state

that you can read and write, you completed 12th Grade at

Woodland High School in Phenix City, Alabama, and that

you understand your rights after having been read to you

by me. This top part says that you don't have to talk to me.

If you decide to stop talking to me and you want to talk to

a lawyer, you can. Nobody can stop you.

“[Graham]: I don't know what kind of crap Kenny told you.

“[Sheriff Taylor]: Well, I'll be glad to tell you word for word

what he's told me.

“[Graham]: And I know because we went through this ten

times with Shea. The first time the attorney found out that

she talked, he chewed her up one side and down the other

because it tends to be it comes back and it ain't typed up

nothing like it was said.

“[Sheriff Taylor]: Well, I'm not going to do that. I don't

know who talked to Shea. I don't know you did any of that,

but I can tell you that whatever you and I talk about is going

to be, word for word, what you and I talk about. Now, every

case is different and everybody thinks different.

“[Graham]: Uh-huh.

“[Sheriff Taylor]: You can stop talking

to me, Lisa, any time you get ready

to stop talking. And you can sign this

saying that nothing's been pressured,

and that you don't mind talking to me.”

(R. 1144-45) (emphasis added).

“Unlike the right to counsel under the Sixth Amendment,

which attaches automatically, the Fifth Amendment right to

counsel will attach only when affirmatively invoked by the

accused.” Reed v. State, 227 S.W.3d 111, 115 (Tex. App.

2006). “The ultimate determination of ‘[w]hether a statement

constitutes an unequivocal request for counsel ... is a question

of law,’ subject to de novo review.” Hathaway v. State, 399

P.3d 625, 629 (Wyo. 2017).

“Not all statements mentioning a lawyer are an effective

request for the presence of counsel. See [Davis v. United

States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed. 2d

362 (1994) ]. A suspect ‘must articulate his desire to

have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the

statement to be a request for an attorney.’ Id. at 459, 114

S.Ct. at 2355. The inquiry is entirely objective -– the

subjective expectations of the suspect are irrelevant.”

Burrell v. Commonwealth, 58 Va. App. 417, 429, 710

S.E.2d 509, 515 (2011). “An invocation must be clear and

unambiguous; the mere mention of the word ‘attorney’ or

‘lawyer’ without more, does not automatically invoke the

right to counsel.” Dinkins v. State, 894 S.W.2d 330, 351 (Tex.

Crim. App. 1995).

*24 A Texas Court of Appeals in Molina v. State, 450

S.W.3d 540, 547 (Tex. App. 2014), considered whether the

defendant's statement –- “If I'm getting blamed for something

like that ... I'm going to just go ahead and call my lawyer”

–- was sufficient to invoke the defendant's right to counsel.

The court stated: “Appellant's statement was not in the form

of a request, nor did appellant expressly say that he wanted

a lawyer. We hold that, under the circumstances presented

here, appellant's statement was not a clear and unambiguous

request for counsel.” 450 S.W.3d at 547.

“Invocation of the Miranda right to counsel ‘requires,

at a minimum, some statement that can reasonably be

construed to be an expression of a desire for the assistance

of an attorney.’ McNeil v. Wisconsin, 501 U.S. [171] at

178 [111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) ]. But if a

suspect makes a reference to an attorney that is ambiguous

or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect

might be invoking the right to counsel, our precedents do

not require the cessation of questioning. See ibid. (‘[T]he

Graham v. State, --- So.3d ---- (2019)

likelihood that a suspect would wish counsel to be present

is not the test for applicability of Edwards [v. Arizona]’);

Edwards v. Arizona, supra, 451 U.S. [477] at 485 (1981) ]

(impermissible for authorities ‘to reinterrogate an accused

in custody if he has clearly asserted his right to counsel’)

(emphasis added).

“Rather, the suspect must unambiguously request counsel.

As we have observed, ‘a statement either is such an

assertion of the right to counsel or it is not.’ Smith

v. Illinois, 469 U.S. [91] at 97-98 [105 S.Ct. 490, 83

L.Ed.2d 488 (1984) ] (brackets and internal quotation

marks omitted). Although a suspect need not ‘speak with

the discrimination of an Oxford don,’ post, at 476 (Souter,

J., concurring in judgment), he must articulate his desire to

have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the

statement to be a request for an attorney. If the statement

fails to meet the requisite level of clarity, Edwards does not

require that the officers stop questioning the suspect. See

Moran v. Burbine, 475 U.S. 412, 433, n. 4 [106 S.Ct. 1135,

89 L.Ed.2d 410] (1986) (‘[T]he interrogation must cease

until an attorney is present only [i]f the individual states

that he wants an attorney’) (citations and internal quotation

marks omitted).”

Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350,

129 L.Ed.2d 362 (1994).

Clearly, the above statements that Graham made were not

clear and unambiguous requests for counsel but merely

comments that mentioned an attorney. Graham did not invoke

her right to counsel and is due no relief on this claim.

Graham also argues that her statements were involuntary

because, she says, she was tired, confused, and on medication

when she made them.

As noted above, the officers testified that Graham did

not appear confused and that she appeared lucid. “A

defendant's ... use of drugs at the time of a confession [is] ...

considered, but [does] not render a confession involuntary.”

State v. Aten, 130 Wash. 2d 640, 664, 927 P.2d 210, 222

(1996). “The fact that a defendant is in pain or taking pain

medication does not, in and of itself, render any statement

made involuntary.” Larry v. State, 266 Ga. 284, 286, 466

S.E.2d 850, 853 (1996).

“Statements made under the influence of sedatives, painkillers, or other drugs are voluntary unless the drug renders

‘the mind of the defendant ... substantially impaired ... [so]

as to make [the] individual unconscious of the meaning

of his words.’ Watkins v. State, 495 So. 2d 92, 99 (Ala.

Cr. App. 1986). The trial court was warranted in finding

that the appellant did not establish that he was under the

influence of Demerol to the degree that it rendered his

statements involuntary. See Cleckler v. State, 570 So. 2d

796, 804 (Ala. Cr. App. 1990); Holladay v. State, 549 So.

2d 122, 127 (Ala. Cr. App. 1988), affirmed, 549 So. 2d

135 (Ala.), cert. denied, 493 U.S. 1012, 110 S.Ct. 575, 107

L.Ed.2d 569 (1989); Cross v. State, 536 So. 2d 155, 158–

59 (Ala. Cr. App. 1988).”

*25 Nelson v. State, 623 So. 2d 432, 435 (Ala. Crim. App.

1993).

Based on the totality of the circumstances, we hold that the

circuit court did not abuse its discretion in denying Graham's

motion to suppress her statements to police. See McLeod,

supra. Graham is due no relief on these claims.

VIII.

Graham next argues that the circuit court erred in limiting

her attorney's ability to cross-examine the State's key witness.

Specifically, Graham argues that she was not allowed to

question Kenny Walton about what he told Graham and her

daughter about killing a man named Earl Taylor in Georgia.

She asserts that the day after Shea was killed Shea was

scheduled to appear in a Georgia court on pending charges,

and, Graham says, Shea could have used the information

about Walton's involvement in the Taylor killing to get

leniency on her pending case. Graham argues that evidence

of Earl Taylor's death, allegedly at the hands of Walton, was

evidence that Walton had his own motive to kill Shea.

The record shows that before Walton testified a hearing was

held at which Walton's attorney was present. The State moved

that Graham be prohibited from presenting any evidence

suggesting that Walton had “killed another man named Earl

Taylor.” (R. 2894.) The State asserted that Walton had never

been charged with that crime and that there was no evidence

indicating that Walton had killed Taylor. The circuit court

indicated that it agreed with the State that such evidence was

not admissible but that, if the issue arose at trial, Graham

should ask for a hearing outside the presence of the jury. (R.

Graham v. State, --- So.3d ---- (2019)

2899.) During Walton's cross-examination, Graham moved

that a hearing be held. The following occurred:

“The Court: It doesn't have anything to do with [Earl]

Taylor.

“[Defense counsel]: No. But the thing is, she was in the

process -– they had -– they had both been told by Mr.

Walton that he killed Earl Taylor. And there had been

inquiries -– and there had been inquiries ever since this case

started about the weapons that were used and -– and trying

to check these weapons to see through [a police officer] in

Muscogee County Sheriff's Office.

“[Walton's attorney]: Well, Judge, I don't think I need much

discussion. If you're allowed -– if [defense counsel] is

allowed to ask that, I am going to be advising [Walton] to

take the Fifth.

“....

“The Court: Well, right now I am not

going to allow the question in front

of the jury. As far as I know, there is

-– Mr. Walton -– here it is 2015 [9

or 10 years since Taylor's murder and

Walton] has never been charged with

that.”

(R. 3018-20.)

At trial, the discussion surrounding this issue was confusing.

Graham makes a more detailed argument in her brief to

this Court. It appears that whether Shea intended to use the

information concerning Taylor's death was purely speculation

on the part of Graham and not based on any evidence. In

fact, the only evidence indicating that Graham and Shea knew

anything about Taylor's death were Graham's own statements.

Graham presented no evidence at trial that Shea intended

to capitalize on this information. Graham relies on Ex parte

Griffin, 790 So. 2d 351 (Ala. 2000), to support her argument

that the circuit court committed reversible error in excluding

this information.

*26 “Alabama courts have long recognized the right of a

defendant to prove his innocence by presenting evidence

that another person actually committed the crime. See Ex

parte Walker, 623 So. 2d 281 (Ala. 1992); Thomas v. State,

539 So. 2d 375 (Ala. Crim. App. 1988); Green v. State, 258

Ala. 471, 64 So. 2d 84 (1953); Underwood v. State, 239

Ala. 29, 193 So. 155 (1939); Orr v. State, 225 Ala. 642,

144 So. 867 (1932); Houston v. State, 208 Ala. 660, 95

So. 145 (1923); Tennison v. State, 183 Ala. 1, 62 So. 780

(1913); McGehee v. State, 171 Ala. 19, 55 So. 159 (1911);

McDonald v. State, 165 Ala. 85, 51 So. 629 (1910). In

addition, Alabama courts have also recognized the danger

in confusing the jury with mere speculation concerning the

guilt of a third party:

“ ‘It generally is agreed that the defense, in disproving

the accused's own guilt, may prove that another

person committed the crime for which the accused is

being prosecuted.... The problem which arises in the

application of this general rule, however, is the degree

of strength that must be possessed by the exculpatory

evidence to render it admissible. The task of determining

the weight that must be possessed by such evidence of

another's guilt is a difficult one.’

“Charles W. Gamble, McElroy's Alabama Evidence §

48.01(1) (5th ed. 1996). To remove this difficulty, this

Court has set out a test intended to ensure that any evidence

offered for this purpose is admissible only when it is

probative and not merely speculative. Three elements must

exist before this evidence can be ruled admissible: (1) the

evidence “must relate to the ‘res gestae’ of the crime”;

(2) the evidence must exclude the accused as a perpetrator

of the offense; and (3) the evidence “would have to be

admissible if the third party was on trial.” See Ex parte

Walker, 623 So. 2d at 284, and Thomas, 539 So. 2d at 394–

96.”

Ex parte Griffin, 790 So. 2d at 354–55.

Graham's purported evidence that Shea could have used the

death of Earl Taylor to her advantage was based on pure

speculation and “would [have] serve[d] only to confuse the

jury. ...” Petric v. State, 157 So. 3d 176, 217 (Ala. Crim.

App. 2013). As the circuit court noted, Walton had not been

charged with Taylor's murder and over nine years had passed

since Taylor's death. This evidence was properly excluded,

and its exclusion did not prevent Graham from properly crossexamining Walton. Graham is due no relief on this claim.

IX.

Graham v. State, --- So.3d ---- (2019)

Graham next argues that the circuit court erred in allowing

evidence of prior bad acts that Graham committed against

Shea to be admitted into evidence. Specifically, Graham

challenges the introduction of evidence that was admitted

during two state witnesses' testimony -– Stephanie Vasquez

and Kevin Graham.

First, Graham argues that the circuit court erred in allowing

the State to question Stephanie Vasquez about Graham's prior

treatment of her daughter. She asserts that the evidence was

too remote and its admission violated Rule 404(b), Ala. R.

Evid., and the Supreme Court's holding in Ex parte Boone,

228 So. 3d 993 (Ala. 2016).

“Evidence of other crimes, wrongs, or acts is not admissible

to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible

for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident, provided that upon request by the

accused, the prosecution in a criminal case shall provide

reasonable notice in advance of trial, or during trial if the

court excuses pretrial notice on good cause shown, of the

general nature of any such evidence it intends to introduce

at trial.”

*27 Rule 404(b), Ala. R. Evid.

The Alabama Supreme Court in Boone held that evidence of

the defendant's gang membership was not admissible under

Rule 404(b), because there was no evidence that the murder

the defendant was accused of committing had been gang

affiliated. However, the quote that Graham cites in her brief is

not from the main opinion in Boone but from Justice Shaw's

special concurrence. Justice Shaw wrote that Rule 404(b)

evidence is “admissible only when it is relevant to the crime

charged and is not so remote as to lose its relevancy.” 228

So. 3d at 999. In fact, Boone does not address the issue of

remoteness as that term applies to Rule 404(b).

Here, the record shows that Vasquez testified that she grew

up with Shea and that they were best friends and spent a lot

of time together before she went into foster care at 12 years

of age. Vasquez was asked to characterize the relationship

between Graham and her daughter. Defense counsel objected

and argued that Vasquez only had daily contact with Shea until

she was about 11 years old and that that was over 10 years

earlier and too remote. Vasquez then testified that she had

spent weekends with the Graham family after she went into

foster care and had maintained contact with Shea. Vasquez

testified:

“So when Lisa would pick me up for the weekends, she

would be very negative towards Shea. Shea could never

do anything right. Shea –- Shea was always fat. Shea was

always dirty. Her room was never clean. Shea was -– she

was always negative. Never said anything positive towards

Shea. And that was her attitude towards Shea when I was

a child and was around Shea.”

(R. 3095-96.)

“In a prosecution for murder, evidence of former acts of

hostility between the accused and the victim are admissible as

tending to show malice, intent, and ill will on the part of the

accused.” White v. State, 587 So. 2d 1218, 1230 (Ala. Crim.

App. 1990).

“Acts of hostility, cruelty and abuse by the accused toward

his homicide victim may be proved by the State for the

purpose of showing motive and intent.... This is ‘another

of the primary exceptions to the general rule excluding

evidence of other crimes.’ Phelps v. State, 435 So. 2d 158,

163 (Ala. Cr. App. 1983).”

Hunt v. State, 659 So. 2d 933, 939 (Ala. Crim. App. 1994).

“Former acts of hostility or cruelty by the accused upon the

victim are very commonly the basis for the prosecution's

proof that the accused had a motive to commit the charged

homicide.” I Charles W. Gamble & Robert I. Goodwin,

McElroy's Alabama Evidence § 45.01(8) (6th ed. 2009).

“The testimony concerning the appellant's other prior bad

acts against the victim and her brother was also admissible

as exceptions to the exclusionary rule. Evidence of these

other bad acts was not admitted to show the appellant's

bad character, but rather was admissible under the motive,

intent, and common plan or scheme exceptions to the

exclusionary rule.

“ ‘ “In a prosecution for murder, evidence of recent abuse

to the child by the accused is admissible to show ‘intent,

motive or scienter.’ ... Acts of hostility, cruelty, and

abuse by the accused toward his homicide victim may be

proved by the State for the purpose of showing motive

and intent.... This is ‘another of the primary exceptions

to the general rule excluding evidence of other crimes.’ ”

Phelps v. State, 435 So. 2d 158, 163 (Ala. Cr. App. 1983)

Graham v. State, --- So.3d ---- (2019)

(citations omitted). See also Baker v. State, 441 So. 2d

1061, 1062 (Ala. Cr. App. 1983).’

*28 “Eslava v. State, 473 So. 2d 1143, 1146 (Ala. Cr. App.

1985). See also Burkett v. State, 439 So. 2d 737, 748–49

(Ala. Cr. App. 1983).

“Evidence of these prior bad acts was also admissible

to show a common plan and scheme by the appellant,

as indicated by the testimony of a State's witness who

stated that the appellant had told her that he treated the

children in such a manner because he was ‘training’

them and because he did not want them. ‘Evidence of

the accused's commission of another crime is admissible

if such evidence, considered with other evidence in the

case, warrants a finding that both the now-charged crime

and such other crime were committed in keeping with

or pursuant to a single plan, design, scheme, or system,

whether narrow or broad in scope.’ Nicks v. State, 521

So. 2d 1018, 1027 (Ala. Cr. App. 1987), affirmed, 521

So. 2d 1035 (Ala. 1988), cert. denied, 487 U.S. 1241, 108

S.Ct. 2916, 101 L.Ed.2d 948 (1988), citing C. Gamble,

McElroy's Alabama Evidence § 69.01(6) (3d ed. 1977).”

Harvey v. State, 579 So. 2d 22, 26 (Ala. Crim. App. 1990).

“ ‘Neither the Alabama Rules of Evidence nor Alabama

caselaw sets a specific time limit for when a collateral

act is considered too remote, other than a conviction for

impeachment purposes.’ ” Bedsole v. State, 974 So. 2d 1034,

1040 (Ala. Crim. App. 2006), quoting McClendon v. State,

813 So. 2d 936, 944 (Ala. Crim. App. 2001). “The remoteness

of a collateral act goes to the weight of the evidence rather

than its admissibility.” Siler v. State, 705 So. 2d 552, 557 (Ala.

Crim. App. 1997).

The circuit court did not abuse its discretion in allowing the

State to question Vasquez about Graham's prior treatment of

her daughter, the victim. Any issue concerning the remoteness

of the evidence affected its weight, not its admissibility.

Graham is due no relief on this claim.

Second, Graham argues that the circuit court erred in allowing

Kevin Graham to testify concerning the relationship between

Graham and Shea because, she says, it was highly prejudicial.

The following occurred during Kevin's testimony:

“[Prosecutor]: What was the relationship to the best of your

knowledge between Shea and her mother, [Graham] here,

in the months leading up to July the 5th of 2007?

“[Kevin Graham]: They did not get along at all.

“[Prosecutor]: Did you ever -– did you ever see any

violence between your wife [Graham] and your daughter

Shea?

“[Kevin Graham]: Yes, sir.

“[Prosecutor]: How many times?

“[Kevin Graham]: A couple of times.

“[Prosecutor]: Did you ever see your wife point that gun at

your daughter?

“[Kevin Graham]: Yes, sir.”

(R. 3549-50.) Graham did not object to this testimony;

therefore, we are limited to determining whether there is plain

error. See Rule 45A, Ala. R. App. P.

As stated above, “violent acts indicating the relationship

between the victim of a violent crime and the defendant

prior to the commission of the offense are relevant to show

defendant's hostility toward the victim, malice, intent, and

a settled purpose to harm the victim.” State v. Smith, 868

S.W.2d 561, 574 (Tenn. 1993).

*29 Moreover, the evidence was not due to be excluded

because its admission was more prejudicial than probative. As

this Court stated in Floyd v. State, [Ms. CR-13-0623, July 7,

2017] ––– So. 3d –––– (Ala. Crim. App. 2017):

“[A]fter thoroughly reviewing the record, we also conclude

that the probative value of the evidence outweighed any

prejudicial effect. This Court has held that ‘ “[o]ne of the

specific criterion to be used, in deciding when prejudicial

effect substantially outweighs probative value, is whether

or not there exist less prejudicial means of proving the

same thing. If such alternative, less prejudicial evidence

exists, then such availability argues in favor of excluding

the prejudicial evidence.” ’ R.D.H. v. State, 775 So. 2d 248,

254 (Ala. Crim. App. 1997) (quoting Charles W. Gamble,

McElroy's Alabama Evidence, § 20.01 (5th ed. 1996)).

“ ‘In making ... a determination [as to whether

the prejudicial effect of the collateral-act evidence

Graham v. State, --- So.3d ---- (2019)

outweighs its probative value], the court should consider

at least the following factors. The first is how necessary

the evidence is to the prosecution's case –- i.e.,

whether there are less prejudicial ways of proving the

asserted purpose. The availability of such alternate proof

would mitigate in the direction of excluding the more

prejudicial collateral crimes or acts. A second factor

is the weight of relevancy or probative force of the

evidence in terms of proving the purpose for which it is

offered. Last, the court should consider the effectiveness

of a limiting instruction in the sense of whether it would

be effective, as a means of avoiding the prejudice of

the jury's using the act as a basis from which to infer

commission of the charged crime, in limiting the jury's

use of the offered evidence to the stated purpose.’

“Charles W. Gamble and Robert J. Goodwin, McElroy's

Alabama Evidence § 69.02(1)(c) (6th ed. 2009) (footnotes

omitted).

“In this case, evidence of the prior

altercations was reasonably necessary

to the State's case to establish Floyd's

intent and motive. As noted above,

Floyd placed his intent at issue when

he asserted intoxication and evidence

of motive is always admissible.

Additionally, the evidence of the prior

altercations was clear and conclusive

and highly relevant to establishing

Floyd's intent and motive in killing

Jones”

she says, the court did not give a limiting instruction on the

use of the evidence.

There was no request for a limiting instruction; therefore, we

review this claim for plain error. See Rule 45A, Ala. R. App.

The Alabama Supreme Court in Johnson v. State, 120 So. 3d

1119 (Ala. 2006), held that when prior bad acts are introduced

as substantive evidence of guilt there is no plain error when

a court fails to sua sponte give a limiting instruction on the

use of that evidence.

*30 “This Court has required a trial court to instruct the

jury sua sponte ‘only [in] those instances where evidence

of prior convictions [were] offered for impeachment

purposes.’ Johnson v. State, 120 So. 3d 1119, 1128 (Ala.

2006)(citing Ex parte Martin, 931 So. 2d [759] at 769

[ (Ala. 2004) ]). In such cases, the trial court has been

required to issue a sua sponte instruction because, in

light of the facts in those particular cases, an instruction

was considered necessary to protect the defendant from

the misuse of ‘presumptively prejudicial’ information that

could be considered by the jury for a limited purpose. Ex

parte Minor, 780 So. 2d 796, 804 (Ala. 2000).”

Ex parte Bohannon, 222 So. 3d 525, 534 (Ala. 2016).

Accordingly, for the reasons stated in Bohannon, there is no

plain error in the circuit court's failure to sua sponte give

a limiting instruction on use of the prior-bad-acts evidence.

Graham is due no relief on this claim.

––– So. 3d at ––––.

Here, the evidence was relevant to show Graham's motive

and intent for killing Shea. Graham's motive and intent were

in dispute at trial. Accordingly, there was no error, much

less plain error, in the State's asking Kevin about Graham's

relationship with her daughter Shea. Graham is due no relief

on this claim.

Graham further argues that the error in admitting the evidence

discussed in Parts IX.A. and IX.B. was compounded because,

Graham next argues that the State failed to present sufficient

evidence that the murder was committed for pecuniary gain

or for other valuable consideration. She further argues that

she was not given sufficient notice of the crime for which she

was to defend against. Graham asserts that the State presented

no evidence indicating that Walton received any financial

reward for killing Shea, only that Graham promised to do

Walton a “favor,” and that that is not sufficient, she argues, to

comply with the capital-murder statute regarding pecuniary

gain. Furthermore, there was a variance, Graham argues,

between the evidence presented at trial and the indictment

because there was no proof that money was exchanged for the

killing.

Graham v. State, --- So.3d ---- (2019)

The State argues that Graham focuses on the testimony of 1

witness and not the other 19 witnesses who testified. The State

contends that there was evidence demonstrating that Graham

intended to give money to the person who killed her daughter

-– though no amount was ever specified. The State asserts:

“Indeed, the State presented evidence of Walton's attempt to

cash in on the ‘favor’ when he called Graham and asked her

if she could hire a lawyer or post his bond. In other words,

Walton sought something of economic value for murdering

Shea.” (State's brief at p. 24.)

Graham was indicted for violating § 13A-5-40(a)(7), Ala.

Code 1975. The indictment charged:

“Lisa L. Graham, whose name is otherwise unknown to the

Grand Jury, did intentionally cause the death of Stephanie

S. Graham, by shooting her with a pistol, for a pecuniary

or other valuable consideration or pursuant to a contract

or for hire, to-wit: Lisa L. Graham solicited or contracted

with, or requested, or commanded or importuned Kenneth

R. Walton to cause the death of Stephanie S. Graham,

and Lisa L. Graham promised or agreed to give the said

Kenneth R. Walton an unspecified sum of United States

currency or other valuable consideration, a further and

better description being otherwise unknown to the grand

jury, in return for the said Kenneth R. Walton causing the

death of Stephanie S. Graham.”

(C. 81) (emphasis added).

The indictment tracked the language of the statute. Section

13A-5-40(a)(7) provides that a capital murder is committed

when the “murder [is] done for a pecuniary or other valuable

consideration or pursuant to a contract or for hire.” (Emphasis

added.) The statute is written in broad terms, as evidenced

by the legislature's use of the word “or” instead of “and.”

Indeed, this Court has discussed the broad application of §

13A-5-40(a)(7). In Harris v. State, 632 So. 2d 503 (Ala. Crim.

App. 1992), we held that an indictment that charged murder

for “a pecuniary or other valuable consideration or pursuant

to a contract or for hire” was an indictment that charged

“alternative methods” of proving the same capital offense.

632 So. 2d at 514. We further stated:

*31 “[T]he appellant argues that the instruction was error

because it did not require the unanimity as to one of

the alternative theories of the capital offense, i.e., murder

for hire, murder pursuant to a contract, or murder for

pecuniary gain. However, because we have previously

concluded that the jury did not have to decide between

this alternative language, the trial court committed no

error in its instructions. See Schad v. Arizona, [501 U.S.

624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) ] (it was

constitutionally permissible for the jurors to agree on

a unanimous verdict based on any combination of the

alternative means to a single offense. 501 U.S. at 624, 111

S.Ct. at 2493–506.”

Harris, 632 So. 2d at 515.

In discussing the sufficiency of the evidence to sustain a

conviction, this Court has stated:

“ ‘In determining the sufficiency of the evidence to sustain

a conviction, a reviewing court must accept as true all

evidence introduced by the State, accord the State all

legitimate inferences therefrom, and consider all evidence

in a light most favorable to the prosecution. Faircloth v.

State, 471 So. 2d 485 (Ala. Cr. App. 1984), aff'd, 471 So.

2d 493 (Ala. 1985).’ Powe v. State, 597 So. 2d 721, 724

(Ala. 1991). It is not the function of this Court to decide

whether the evidence is believable beyond a reasonable

doubt, Pennington v. State, 421 So. 2d 1361 (Ala. Cr. App.

1982); rather, the function of this Court is to determine

whether there is legal evidence from which a rational finder

of fact could have, by fair inference, found the defendant

guilty beyond a reasonable doubt. Davis v. State, 598 So.

2d 1054 (Ala. Cr. App. 1992). Thus, ‘[t]he role of appellate

courts is not to say what the facts are. [Their role] is to

judge whether the evidence is legally sufficient to allow

submission of an issue for decision [by] the jury.’ Ex

parte Bankston, 358 So. 2d 1040, 1042 (1978) (emphasis

original).”

Ex parte Woodall, 730 So. 2d 652, 658 (Ala. 1998).

“Section 13A–5–40(a)(7) makes capital the offense

of ‘[m]urder done for pecuniary or other valuable

consideration or pursuant to a contract or for

hire’ (emphasis added). We do not adhere to the appellant's

position that to prove a prima facie case of the offense

charged the state must show that the appellant was in actual

possession of the gain for which the appellant allegedly

committed the offense. It is enough to show that he acted in

anticipation of receiving pecuniary gain. See Henderson v.

State, 584 So. 2d 841, 859 (Ala. Crim. App. 1988), where

we stated, ‘ “[P]ecuniary gain” does not refer to the fruits of

the offense, but to the situation where one is hired or paid

to commit the offense.’ ”

Graham v. State, --- So.3d ---- (2019)

Gospodareck v. State, 666 So. 2d 835, 842 (Ala. Crim. App.

1993) (footnote omitted).

“ ‘ “In determining the sufficiency of the evidence to

sustain a conviction, a reviewing court must accept as true

all evidence introduced by the State, accord the State all

legitimate inferences therefrom, and consider all evidence

in a light most favorable to the prosecution.” ’ Ballenger

v. State, 720 So. 2d 1033, 1034 (Ala. Crim. App. 1998)

(quoting Faircloth v. State, 471 So. 2d 485, 488 (Ala. Crim.

App. 1984), aff'd, 471 So. 2d 493 (Ala. 1985)). ‘ “The

test used in determining the sufficiency of evidence to

sustain a conviction is whether, viewing the evidence in the

light most favorable to the prosecution, a rational finder

of fact could have found the defendant guilty beyond a

reasonable doubt.” ’ Nunn v. State, 697 So. 2d 497, 498

(Ala. Crim. App. 1997) (quoting O'Neal v. State, 602 So.

2d 462, 464 (Ala. Crim. App. 1992)). ‘ “When there is legal

evidence from which the jury could, by fair inference, find

the defendant guilty, the trial court should submit [the case]

to the jury, and, in such a case, this court will not disturb

the trial court's decision.” ’ Farrior v. State, 728 So. 2d 691,

696 (Ala. Crim. App. 1998) (quoting Ward v. State, 557 So.

2d 848, 850 (Ala. Crim. App. 1990)). ‘The role of appellate

courts is not to say what the facts are. Our role ... is to

judge whether the evidence is legally sufficient to allow

submission of an issue for decision [by] the jury.’ Ex parte

Bankston, 358 So. 2d 1040, 1042 (Ala. 1978).”

*32 McGlocklin v. State, 910 So. 2d 154, 156 (Ala. Crim.

App. 2005).

Here, at the conclusion of the State's case, Graham moved for

a judgment of acquittal. She argued that the State had failed

to prove that any money exchanged hands for the murder. (R.

3991.) A lengthy discussion was held on this issue. Graham

repeatedly argued that the State had failed to prove that any

money exchanged hands. The circuit court stated that “it

doesn't have to necessarily be money” and denied the motion.

(R. 4002.) It relied, in part, on Sockwell v. State, 675 So. 2d

4 (Ala. Crim. App. 1993), and Henderson v. State, 584 So. 2d

841 (Ala. Crim. App. 1988).

The circuit court cited Sockwell and Henderson when

denying Graham's motion for a judgment of acquittal. This

Court in Sockwell stated:

“The corpus delicti may be established by circumstantial

evidence. Spear v. State, 508 So. 2d 306, 308 (Ala. Crim.

App. 1987), cert. denied, 537 So. 2d 67 (Ala. 1988);

Johnson [v. State], 473 So. 2d [607] at 610 [ (Ala. Crim.

App. 1985) ]. The evidence in this case established that

the victim's wife, codefendant Louise Harris, stood to gain

thousands of dollars in insurance proceeds as a result of

her husband's death. This fact was stipulated to by the

parties in this case. The appellant argues, however, that

there was no independent evidence that he would gain any

money or other consideration as a result of the victim's

death. However, Patterson testified that after the voice on

the pager stated that the victim was leaving and again after

the shooting when the appellant returned to Hood's vehicle

and said that ‘he was gonna get his money.’ Clearly, this

circumstantial evidence coupled with the other evidence

that McCarter had been trying to hire someone to kill the

victim was sufficient to establish that the appellant shot the

victim for pecuniary gain.”

Sockwell, 675 So. 2d at 21 (emphasis added).

In Henderson, this Court addressed the definition of

“pecuniary gain” in § 13A-5-40(a)(7) and stated:

“In Alabama, while ‘pecuniary gain’ is not defined by the

Code, the similar term ‘pecuniary benefit’ is defined under

the article dealing with bribery and corrupt influence, in §

13A-10-60(b)(2), [Ala. Code 1975,] as follows:

“ ‘Benefit in the form of money, property, commercial

interests or anything else the primary significance of

which is economic gain. ...’

“....

“In construing the term ‘hire,’ as encompassed in ‘murder

for hire,’ we will first look to the terms's ordinary meaning.

‘ “Webster defines the noun hire as ‘the price, reward, or

compensation paid, or contracted to be paid for ... personal

service, or for labor.’ It is also defined as ‘the price or

compensation for labor and services.’ 29 C.J. 756.” ’ State

v. Kenyon, Inc., 153 S.W.2d 195 (Tex. Cir. App. 1941). See

also State v. Welch & Brown, 187 Okl. 470, 471, 103 P.2d

533, 534 (1940).

“ ‘ “The element of price or reward is inherent in the

word ‘hire.’ A contract of hire, therefore, would be a

most unusual undertaking if it did not involve something

by way of recompense; and we think that no such

unusual use of words was intended by the legislature in

this instance.’ ”

Graham v. State, --- So.3d ---- (2019)

*33 “Evans v. Phoenix Insurance Co., 175 So. 2d 425,

430 (La. Ct. App. 1965).”

Henderson, 584 So. 2d at 859.

Moreover, this Court in Haney v. State, 603 So. 3d 368 (Ala.

Crim. App. 1991), held: “[T]he state did not have to prove

that appellant benefitted financially from the commission of

the offense, only that the crime itself was committed for

pecuniary gain.” 603 So. 2d at 381.

“We agree with the State that § 13A-5-40[ (a) ](7), Code of

Alabama 1975, requires proof (1) of an intentional murder,

and (2) that the murder was committed for pecuniary gain,

pursuant to a contract, or for hire. The statute does not

require the State to establish that the appellant, himself,

rather than his accomplices, received the pecuniary gain,

only that the murder was committed for pecuniary gain.

In this case, the parties stipulated that Louise Harris stood

to receive thousands of dollars in insurance proceeds as a

result of her husband's death.”

Sockwell, 675 So. 2d at 24-25 (emphasis added).

The Indiana Supreme Court in Norton v. State, 273 Ind. 635,

408 N.E.2d 514 (1980), considered the definition of “hire”

as that term applied to Indiana's murder-for-hire statute. The

court stated:

“Appellant contends that, to constitute a hiring under

as the apprehension or surrender of the perpetrator after the

killing, would not alter the fact that a murder pursuant to

a hiring had been committed. Likewise, if, subsequent to

the killings, the offeror refused to pay the perpetrator as he

had promised, this refusal would not alter the fact that the

perpetrator had been hired before the killing.”

273 Ind. at 670-71, 408 N.E.2d at 537 (emphasis added).

Based on the cases cited and quoted above, the “pecuniary

gain” in § 13A-5-40(a)(7) may be a gain to the hirer in the

form of insurance proceeds or other financial benefits. See

Sockwell, supra. The “pecuniary gain” to the hiree may be

in a form other than money, i.e., goods, property, etc. See

Henderson, supra. Also, the fact that Walton had received no

benefit before the murder did not negate the application of

§ 13A-5-40(a)(7). See Norton, supra. Moreover, given this

Court's holding in Harris, the State was not required to prove

every definition of capital murder listed in § 13A-5-40(a)(7)

because the indictment, which mirrored the statute, defined

alternative methods of proving the same capital offense. See

Harris, supra.

*34 Here, during Walton's direct examination, the following

occurred:

“[Prosecutor]: Mr. Walton, who fired the shots that killed

Shea Graham?

“[Walton]: I did.

this statute, [ 13 ] there must be an actual exchange of

something of value for a service. He asserts that a promise

of money in exchange for a killing is not a sufficient hiring.

“[Prosecutor]: Why did you do it?

“We disagree. Appellant's proposed definition of ‘hire’

covers a much narrower range of activity than we think

the legislature intended. We note, for example, that

Black's Law Dictionary defines ‘hire’ as: ‘To purchase

the temporary use of a thing, or to stipulate for the labor

or services of another.’ ‘The words the legislature chose

are not to be given strict connotations within the narrow

parameters of the statutory definitions of crimes.’ Carson

v. State, (1979) [271] Ind. [203], 391 N.E.2d 600, 602.

A murder for hire under this statute has been committed

when one offers or promises compensation to another for

performing a killing, and the other person commits the

murder pursuant to or in response to this offer or promise.

We are not persuaded that ‘money or something of value’

must, in fact, change hands before or after the killing, for

there to have been a ‘hiring.’ An intervening factor, such

“[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]: Because [Graham] asked me to do her a favor.

“[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]: I mean 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?

Graham v. State, --- So.3d ---- (2019)

“[Walton]: I shot and killed her.

“[Prosecutor]: Well, my question is, did she promise you

or offer you anything else?

“[Defense counsel]: Judge, we are going to object to

leading.

“The Court: It's been asked and answered, but I will let

you pursue it. Rephrase it.

“[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. 2945-46.)

Walton testified that he expected to receive “something” for

killing Shea in addition to the favor that Graham promised

him. In her statement, Graham said: “[I]n all honesty, [I] told

[Walton] I'd give anything, and I didn't quote a number, if

somebody would just do something with Shea.” (C. 1201.)

Graham also stated during her conversation with her husband

that Walton had telephoned her to ask her to “make his

bond” and that Graham had not said no but had asked “how

much” was the bail. Stephen Hemilburger also testified that

Graham had offered him $5,000 to kill Shea. (R. 3480.) There

was also evidence indicating that the Grahams had provided

a cash bond for Shea in the amount of $100,000 14 when

Shea was arrested and charged with a drive-by shooting and

that Graham had feared that that money would be forfeited

because of Shea's bad conduct. 15 (C. 1303.) It is clear from

the testimony at trial and Graham's statements to police that

Walton did not commit the murder for nothing and that he

expected some type of benefit from Graham, that Graham

believed that getting rid of Shea would save her a great deal of

money, and that Shea's murder would keep the Grahams from

forfeiting the $100,000 cash bond that had been posted for

Shea. There was sufficient evidence for the jury to conclude,

beyond a reasonable doubt, that Graham had “hired” Walton

to kill Shea and that Walton had expected some remuneration

in return.

Moreover, there was no variance, fatal or otherwise, between

the indictment and the proof at trial.

“A fatal variance between allegations in an indictment and

proof of those allegations presented at trial exists when the

State fails to adduce any proof of a material allegation of

the indictment or where the only proof adduced is contrary

to a material allegation in the indictment. Johnson v. State,

584 So. 2d 881, 884 (Ala. Crim. App. 1991). ‘Alabama

law requires a material variance between the indictment

and the proof adduced at trial before a conviction will be

overturned. Ex parte Collins, 385 So. 2d 1005 (Ala. 1980).’

Brown v. State, 588 So. 2d 551, 558 (Ala. Crim. App.

1991).”

*35 Bigham v. State, 23 So. 3d 1174, 1177 (Ala. Crim. App.

2009).

“A variance in the form of the offense charged in the

indictment and the proof presented at trial is fatal if the

proof offered by the State is of a different crime, or of the

same crime, but under a set of facts different from those

set out in the indictment. Ex parte Hightower, 443 So. 2d

1272, 1274 (Ala. 1983).”

Ex parte Hamm, 564 So. 2d 469, 471 (Ala. 1990).

There was no proof at trial that a different crime was

committed from the one charged in the indictment; therefore,

there was no fatal variance in this case. Thus, Graham is due

no relief on this claim.

XI.

Graham next argues that the prosecutor's misconduct in the

guilt phase denied her a fair trial. Specifically, Graham argues

that the prosecutor asked improper questions of witnesses and

made improper arguments in closing. We consider each claim

individually.

First, Graham argues that the prosecutor improperly bolstered

the credibility of two state witnesses during their testimony.

“ ‘Generally, the proponent of a witness may not bolster

the credibility of a witness by showing that he made similar

statements on prior occasions. Marcum v. State, 39 Ala. App.

616, 107 So. 2d 899 (Ala. Cr. App. 1958.)’ ” Snyder v. State,

Graham v. State, --- So.3d ---- (2019)

893 So. 2d 488, 524 (Ala. Crim. App. 2003), quoting Varner

v. State, 497 So. 2d 1135, 1137 (Ala. Crim. App. 1986).

First, Graham argues that the circuit court erred in allowing

Rachel Cunningham to testify that she had previously testified

in Graham's first trial and that her testimony at the second trial

was consistent with that testimony. The following occurred:

“[Prosecutor]: And this is the second time you have come

to testify. Is that correct?

“[Defense counsel]: Judge, we are going to object. That's

not relevant.

“The Court: Overruled. He can ask that.

“[Prosecutor]: You have testified before in this case, did

you not?

that this testimony was not hearsay pursuant to Rule 801(d)(1)

(B), Ala. R. Evid., and was admissible. That rule provides that

a statement is not hearsay if the statement is “consistent with

the declarant's testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication, or

improper influence or motive. ...”

*36 Regardless of whether the above testimony meets the

requirements of Rule 801(d)(1)(B), we find no error that rises

to the level of plain error. “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.” Hyde v. State, 778 So. 2d

199, 209 (Ala. Crim. App. 1998).

Moreover, if any error did occur, we are confident that the

error was harmless beyond a reasonable doubt. Chapman v.

California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967). For these reasons, we find no plain error. Graham is

due no relief on this claim.

“[Cunningham]: Yes, sir.

“[Prosecutor]: Okay. Did you -– did you testify as to the

same thing then that you testified to now?

“[Cunningham]: Yes, sir.”

(R. 3473.) At trial, Graham made a different objection than

the argument she makes on appeal. Graham objected that the

testimony was not relevant, but on appeal Graham argues that

the evidence was elicited to bolster Cunningham's credibility.

Therefore, we review this claim for plain error. See Rule 45A,

Ala. R. App. P.

Graham relies on Varner v. State, 497 So. 2d 1135 (Ala.

Crim. App. 1986), to support her argument. In Varner, we

stated: “Generally, the proponent of a witness may not bolster

the credibility of a witness by showing that he made similar

statements on prior occasions. Marcum v. State, 39 Ala. App.

616, 107 So. 2d 899 (Ala. Cr. App. 1958).” 497 So. 2d at 1137.

“The reasons for this rule is that such evidence is hearsay and

is inadmissible unless an exception can be found.” People v.

Henry, 569 N.Y.S.2d 905, 906, 150 Misc. 2d 700, 702 (1991).

The above-quoted testimony was elicited on redirect

examination after Cunningham's credibility had been attacked

on cross-examination. The contents of her prior testimony

were not admitted, merely the fact that she had previously

testified consistent with her trial testimony. The State asserts

Graham also challenges the following testimony that occurred

during Sheriff Taylor's examination.

“[Prosecutor]: Did [Walton], in fact, act out for you, if

you will, at one point what he did at that -–down there on

Bowden Road?

“[Sheriff Taylor]: He did.

“[Prosecutor]: And the things he told you about what

happened on Bowden Road, did they comport with the

evidence as you knew it?

“[Defense counsel]: Judge, we are going to object at this

point to his supposition, as far as what he thought Kenny

Walton told him being true or not true.

“The Court: Well, -“[Prosecutor]: Judge --

“The Court: -– he didn't say that. He

just said did it comport to the other

evidence that he is –- so overruled.”

Graham v. State, --- So.3d ---- (2019)

biblical teachings.” Wright v. State, 279 Ala. 543, 550-51, 188

So. 2d 272, 279 (1966).

(R. 3841-42.)

Sheriff Taylor never answered the now-challenged question.

“Since the questions were not answered, reversible error does

not appear.” Embrey v. State, 283 Ala. 110, 116, 214 So. 2d

567, 573 (1968). “[T]he witness did not answer, consequently,

under the rule of our cases, reversible error is not shown in

this connection.” Woodard v. State, 253 Ala. 259, 263, 44 So.

2d 241, 244 (1950). “[R]eversible error cannot be predicated

upon the overruling of an objection to a question which is not

answered.” Haisten v. State, 50 Ala. App. 504, 506, 280 So. 2d

209, 211 (1973). Thus, Graham is due no relief on this claim.

Graham next argues that the prosecutor's closing arguments

in the guilt phase were erroneous. When reviewing a

prosecutor's challenged remarks made in closing, we keep in

mind the following:

“Wide discretion is allowed the trial court in regulating

the arguments of counsel. Racine v. State, 290 Ala. 225,

275 So. 2d 655 (1973). ‘In evaluating allegedly prejudicial

remarks by the prosecutor in closing argument, ... each

case must be judged on its own merits,’ Hooks v. State,

534 So. 2d 329, 354 (Ala. Cr. App. 1987), aff'd, 534

So. 2d 371 (Ala. 1988), cert. denied, 488 U.S. 1050, 109

S.Ct. 883, 102 L.Ed.2d 1005 (1989) (citations omitted)

(quoting Barnett v. State, 52 Ala. App. 260, 264, 291 So.

2d 353, 357 (1974)), and the remarks must be evaluated

in the context of the whole trial, Duren v. State, 590 So.

2d 360 (Ala. Cr. App. 1990), aff'd, 590 So. 2d 369 (Ala.

1991). ‘In order to constitute reversible error, improper

argument must be pertinent to the issues at trial or its natural

tendency must be to influence the finding of the jury.’

Mitchell v. State, 480 So. 2d 1254, 1257–58 (Ala. Cr. App.

1985) (citations omitted). ‘To justify reversal because of an

attorney's argument to the jury, this court must conclude

that substantial prejudice has resulted.’ Twilley v. State,

472 So. 2d 1130, 1139 (Ala. Cr. App. 1985) (citations

omitted).”

Coral v. State, 628 So. 2d 954, 985 (Ala. Crim. App. 1992).

*37 “Criminal trials are adversary proceedings ... and not

social affairs. Argument of counsel should not be so restricted

as to prevent reference, by way of illustration, to historical

facts and public characters, or to principles of divine law or

“[C]ounsel is afforded broad latitude in closing argument.

This latitude, set out by the Court in Nelms & Blum Co.

v. Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930),

has been referred to in the context of capital cases. In

Nelms, we stated that ‘[c]ounsel may draw upon literature,

history, science, religion, and philosophy for material for

his argument.’ Id. at 382-384, 131 So. 817. See Hansen

v. State, 592 So. 2d 114, 139-140 (Miss. 1991); Shell v.

State, 554 So. 2d 887, 899 (Miss. 1989), vacated on other

grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990);

Johnson v. State, 416 So. 2d 383, 391 (Miss. 1982).”

Carr v. State, 655 So. 2d 824, 853 (Miss. 1995).

“The test of a prosecutor's legitimate argument is that

whatever is based on facts and evidence is within the scope

of proper comment and argument. Kirkland v. State, 340

So. 2d 1139 (Ala. Cr. App. [1976] ), cert. denied, 340

So. 2d 1140 (Ala. [1977] ). Statements based on facts

admissible in evidence are proper. Henley v. State, 361 So.

2d 1148 (Ala. Cr. App.), cert. denied, 361 So. 2d 1152

(Ala. 1978). A prosecutor as well as defense counsel has

a right to present his impressions from the evidence. He

may argue every legitimate inference from the evidence

and may examine, collate, sift, and treat the evidence in his

own way. Williams v. State, 377 So. 2d 634 (Ala. Cr. App.

1979); McQueen v. State, 355 So. 2d 407 (Ala. Cr. App.

1978).”

Watson v. State, 398 So. 2d 320, 328 (Ala. Crim. App. 1980).

“Claims of prosecutorial misconduct are subject to harmlesserror analysis.” Bonner v. State, 921 So. 2d 469, 473 (Ala.

Crim. App. 2005).

First, Graham argues that the prosecutor improperly made the

following argument in closing:

“I want you to also remember when you think about that,

that Kevin Graham testified here, that he heard [Graham]

admit to Papa [Warren Thompson] that she took the gun to

him and asked him to clean it.”

(R. 4067.) In her brief, Graham argues: “The prosecutor

sought to prove Ms. Graham's consciousness of guilt by

arguing that she asked Warren Thompson to clean her gun the

Graham v. State, --- So.3d ---- (2019)

day after Shea's death.” (Graham's brief at p. 70.) However,

in the challenged argument the prosecutor did not state that

Graham had given the gun to be cleaned the day after Shea

was killed.

There was evidence indicating that the gun was given to

Thompson for him to clean. Kevin stated in his conversation

with Graham: “Papa [Thompson] said you brought him the

gun Friday [the day after Shea's body was found] and it had

rust on it.” (R. 1110.) Walton also testified that Thompson got

the gun he used in order to clean it. Sergeant Costello testified

that the police retrieved the gun from Thompson. (R. 2847.)

Clearly, the prosecutor's remarks were based on the evidence

and did not constitute error.

Graham also argues that the following argument was

erroneous: “That cell phone [Graham's cellular telephone] has

never been found in this whole investigation. It's never been

located.” (R. 4170.) After this argument was made, defense

counsel then stated:

*38 “Judge, we are going to object to him arguing matters

that are not in evidence. And I have tried to be lenient

when he argued the first time, but we object to him arguing

matters that are not in evidence.”

Graham next argues that the prosecutor's improper arguments

constituted an “improper exhortation [for the jury] to

convict.” (Graham's brief at p. 73.) Specifically, Graham

challenges the following argument made in the prosecutor's

rebuttal:

“The only thing that is necessary for evil to prevail is for

men and women of goodwill to do nothing. [ 16 ]

“What you do here speaks to the community about how we

feel about justice and law in Russell County, Alabama. You

speak for the community. There are -–history is replete with

instances in which evil did prevail because men and women

of goodwill did nothing. If you look at this town in the 19

-– early 1950s and 40s and 50s, it was a lawless town. It

was run by a local mob. The gamblers, corrupt police, ran

this town.

“It only changed -– it only changed because the Grand Jury,

composed of people just like you, returned indictments and

said this is going to stop. One of those men had his house

burned. Two of them -“[Defense counsel]: Judge, we are going to object at this

point to –- to this line -- indictments never -“The Court: Well --

“[Defense counsel]: -– stopped

anything. I mean, we -– we object.

We think it's improper.”

(R. 4170-71.) The circuit court overruled the objection.

After this discussion, the prosecutor then made the following

comments:

“If I say anything to you that you think is not right, then you

should trust your memory. That's my memory that Sheriff

Taylor said they never found the phone. If you remember

something different that's what you should do.”

(R. 4171-72.)

Graham's cellular telephone had never been located despite

the fact that a thorough search had been conducted of

Graham's home. Certainly, this argument was a legitimate

inference that could have been drawn from the evidence and

was a proper comment.

(R. 4203-04.)

“It is improper for a prosecutor to ‘seek justice beyond the

parameters of the case.’ ” State v. Powers, 654 N.W.2d 667,

679 (Minn. 2003). In People v. Clemons, 89 P.3d 479 (Colo.

App. 2003), the court addressed the propriety of a similar

argument and stated:

“We agree with defendant that the prosecutor's use of

this quotation was an improper attempt to persuade the

jurors to convict defendant in order to combat evil for

the community. However, this quotation was an isolated

incident in an otherwise proper closing argument in which

the prosecutor repeatedly urged the jury to apply the rules

of law to the evidence adduced at trial. Accordingly, we

are convinced that this error was harmless. See Loaiza v.

Graham v. State, --- So.3d ---- (2019)

State, 186 Ga. App. 72, 74, 366 S.E.2d 404, 406 (1988)(no

reversible error where trial court sustained defendant's

objection to prosecutor's use of this Burke quote in closing

argument, but denied mistrial motion); Commonwealth v.

Davis, 38 Mass. App. Ct. 932, 934, 646 N.E.2d 1093,

1095 (1995)(prosecutor's use of this Burke quote in closing

argument, to which defendant objected, did not require

reversal); People v. Williams [434 Mich. 894], 453 N.W.2d

675 (Mich. 1990)(prosecutor's use of this Burke quote

in closing argument did not require reversal); State v.

Stufflebean, 329 N.W.2d 314 (Minn. 1983)(prosecutor's

use of this Burke quote not reversible error); cf. State

v. Prevatte, 356 N.C. 178, 264, 570 S.E.2d 440, 488

(2002)(prosecutor's use of this Burke quote in closing

argument was proper); see also Trujillo v. State, 44 P.3d

22, 26 (Wyo. 2002)(prosecutor's use of this Burke quote

in closing argument was an inappropriate rhetorical device

but not plain error). But see State v. Mills, 57 Conn. App.

202, 213, 748 A.2d 318, 325 (2000)(reversing defendant's

conviction where prosecutor used this Burke quote in

closing argument, but also emphasizing numerous other

instances of serious misconduct in the prosecutor's closing

argument).”

*39 89 P.3d at 483-84. See also People v. Ortega, 370 P.3d

181, 190 (Colo. App. 2015).

“The quotation from Burke is more troubling, however,

because it was an improper call for justice beyond the

parameters of the case. Nonetheless, in State v. Stufflebean,

329 N.W.2d 314, 318 (Minn. 1983), this court held

substantially similar language to be ‘technically improper’

but not warranting reversal. We reiterate the improper

nature of such arguments, but we conclude that those

comments do not warrant reversal.”

State v. Powers, 654 N.W.2d at 679. For the foregoing

reasons, we find no reversible error in the prosecutor's

comments.

Moreover, “[t]he standard of review is not whether the

defendant was prejudiced, but whether the comment ‘so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.’ Darden v. Wainwright,

477 U.S. 168, 169, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).”

Gobble v. State, 104 So. 3d 920, 970 (Ala. Crim. App. 2010).

Certainly, that standard was not met in this case. Graham is

due no relief on this claim.

XII.

Graham next argues that the circuit court failed to instruct the

jury that Graham had to have the specific intent to kill Shea

before she could be convicted of capital murder. Specifically,

Graham argues that the circuit court erroneously instructed

the jury that they could convict Graham of murder for hire

even if the person that Graham intended to kill was not her

daughter.

Graham challenges the following part of the circuit court's

lengthy instructions:

“That the Defendant, Lisa Graham, caused the death

of Stephanie Graham or Shea Graham by soliciting

or contracting with or requesting or commanding or

importuning Kenneth R. Walton to cause the death of

Stephanie or Shea Graham by shooting Stephanie Graham.

“Third element

“That in committing the act which caused the death

of Stephanie Graham or Shea Graham, the Defendant

intended to kill the deceased or another person.

“A person acts intentionally when it

is her purpose to cause the death of

another person. The intent to kill must

be real and specific.”

(R. 4228) (emphasis added).

At the conclusion of the instructions, the court asked if the

parties had any exceptions. The following occurred: “The

Court: Anything from the defense?

“[Defense counsel]: Well, I think -– I think what

[the prosecutor] said is exactly correct. You have the

particularized intent on Stephanie Shea Graham for capital

murder. But not for murder. And that's what I tried to bring

up before we went into these charges, because what you

charged on capital murder, in -– in my estimation at the

number three element of capital murder is incorrect. And

-– and the reason it's incorrect -“....

Graham v. State, --- So.3d ---- (2019)

“The Court: Now, that's straight -– you had -– that's straight

from the charge. That's straight from the pattern charge.

“....

“The Court: Well -– now, if you want me to, I will bring

them back here and go back over the element three. But I

mean, they -– I mean, I pulled it right out of the pattern jury

instructions.

*40 “[Defense counsel]: Well, Judge, I mean, we just -–

the Court has charged the jury what you did. We think

under this set of circumstances that it's more particularized

because of the solicitation being the -“....

“The Court: And that's what they want

us to use. So I am –- I am going to deny

it on that and let them go.”

(R. 4253-61.)

Graham argues that by using the three words “or another

person” the court instructed the jury that they could rely on the

doctrine of transferred intent to find Graham guilty of capital

murder. She asserts that this instruction, in essence, amended

the indictment. Graham said in one of her statements that she

had given her gun to Walton so that he could kill his cousin -Ieisha Hodge. Graham asserts that Hodge was her husband's

“suspected lover.”

Graham further argues that the doctrine of transferred intent

has no application to capital cases where the intent to kill must

be real and specific. Graham cites Ex parte Woodall, 730 So.

2d 652 (Ala. 1998), to support this argument.

The State argues in its brief:

“Graham attempts to establish reversible error by focusing

on three words in the court's verbatim reading of the pattern

instructions, that does not entitle her to relief for at least

two reasons. First, ‘no reversible error will be found when

the trial court follows the pattern jury instructions adopted

by this Court.’ Snyder v. State, 893 So. 2d 488, 553 (Ala.

Crim. App. 2003). Second, although Graham claims that

the court's reading the phrase ‘or another person’ allowed

the jury to convict her of capital murder, based on her

comments that she ‘gave [Walton] her gun in order to kill

Ieisha Hodge,’ there was no evidence that Graham solicited

Walton to murder Ieisha. Although Graham did tell both

Kevin and Lt. Taylor that she loaned her gun to Walton

to kill Ieisha, she never claimed that she either hired or

asked Walton to kill Ieisha. Additionally, Graham did not

maintain her ruse about loaning her gun to Walton to kill

Ieisha -– she admitted that she gave Walton her gun to

‘get rid of’ Shea. Thus, the evidence presented at trial

established that Graham solicited Walton to murder only

one person: Shea.”

(State's brief at pp. 17-18.)

“ ‘A trial court has broad discretion when formulating its

jury instructions....’ Williams v. State, 795 So. 2d 753, 780

(Ala. Crim. App. 1999) (citing Williams v. State, 710 So.

2d 1276, 1305 (Ala. Crim. App. 1996)). ‘When reviewing

a trial court's jury instructions, [this Court] must view [the

instructions] as a whole, not in bits and pieces, and as a

reasonable juror would have interpreted them.’ Johnson v.

State, 820 So. 2d 842, 874 (Ala. Crim. App. 2000).”

Miller v. State, 63 So. 3d 676, 701 (Ala. Crim. App. 2010).

See also Johnson v. State, 820 So. 2d 842 (Ala. Crim. App.

2000).

Here, at the beginning of the jury instructions, the court read

the indictment to the jury. No count of the indictment charged

that Graham had hired Walton to kill Ieisha Hodge. During

closing arguments Graham's counsel did not mention Hodge.

The jury charges did not mention Hodge. In fact, there was

no testimony that Hodge was dead. Also, the circuit court

stated that the first element of the charges was that “Shea

Graham is dead.” (R. 4227.) The court further instructed:

“To convict, the State must prove that Lisa L. Graham had

particularized intent to kill Stephanie S. Graham. A person

acts intentionally when its his or her purpose to caused the

death of another person. The intent to kill must be real and it

must be specific.” (R. 4241.) The circuit court did not instruct

on the issue of transferred intent because it had no application

to the facts of this case.

*41 The Pattern Jury Instructions, adopted by the Alabama

Supreme Court on July 30, 2010, for use in capital cases, 17

state that the intent instructions for use in a capital-murder

trial should read: “A person commits an intentional murder if

he causes the death of another person, and in performing the

act or acts that cause the death of that person, he intends to

kill that person (or another person).” (Emphasis added.) 18

Graham v. State, --- So.3d ---- (2019)

This Court must examine the challenged instructions as a

reasonable juror would and not in isolation. It is clear that the

circuit court did not instruct the jury that they could convict

Graham of capital murder even if she did not have the specific

intent to kill Shea. Graham's interpretation of the instructions

is strained and not supported by the entire instructions. 19

We note that the jury instructions in Ex parte Phillips,

[Ms. 1160403, October 19, 2018] ––– So. 3d ––––, ––––

(Ala. 2018), stated: “To convict, the State must prove

beyond a reasonable doubt each of the following elements

of intentional murder of two or more persons ... that in

committing the act that caused the deaths of both [Erica] and

Baby Doe, the defendant intended to kill the deceased or

another person.” (Emphasis added.) In Ex parte Phillips, the

defendant was charged with the capital offense of killing two

or more persons. The Phillips Court instructed the jury that

the defendant had to have the specific intent to kill only the

mother, and not the baby, to be convicted of capital murder.

The Supreme Court in Phillips also held that the circuit court's

instructions were not an amendment to the indictment.

Based on our review of the instructions in this case, it is clear

that the jury was properly instructed that to convict Graham

of capital murder they had to find beyond a reasonable doubt

that Graham had the specific intent to kill Shea. Accordingly,

we find no error in the circuit court's instructions.

*42 Moreover, even if the three words in the instructions “or

another person” were erroneous, that error would be harmless

beyond a reasonable doubt. The circuit court instructed the

jury that to find Graham guilty of capital murder it had to find

that Graham had a specific intent to kill Shea.

“ ‘[W]e acknowledged that faulty jury instructions are

subject to harmless error review. [State v. Beamon, 347

Wis. 2d 559, 830 N.W.2d 68 [681] (2013) ], ¶ 24 (citing

Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S.Ct. 530,

172 L.Ed.2d 388 (2008); Neder v. United States, 527

U.S. 1, 11, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)).

Harmless error review applies both to jury instructions

that have omissions and to jury instructions that place an

additional burden on the State. Id., ¶¶ 24–25. “Therefore,

where a jury instruction erroneously states the applicable

statute, we must determine whether, under the totality of

the circumstances, the erroneous instruction constituted

harmless error.” Id., ¶ 27 (citing [State v.] Harvey, 254 Wis.

2d 442, ¶ 46, 647 N.W.2d 189 [ (2002) ]).’ ”

Bohannon v. State, 222 So. 3d 457, 509 (Ala. Crim. App.

2015), quoting State v. Williams, 364 Wis. 2d 126, 148, 867

N.W.2d 736, 746 (2015).

For the above reasons, we find no reversible error in the circuit

court's jury instructions on intent. Nor did the instructions

amend the indictment. Graham is due no relief on this claim.

XIII.

Graham next argues that she was entitled to a jury instruction

on “valuable consideration.” Without such an instruction,

Graham says, the jury was free to “convict without proof of

some economic gain expected by Mr. Walton.” (Graham's

brief at p. 35.)

The State argues that when the jury returned with a question,

the circuit court asked if Graham had an instruction on

“valuable consideration.” Graham responded that she did.

The court agreed to instruct the jury based on Graham's

requested charges. The State argues that any error was invited

by Graham's actions and is waived because it does not rise to

the level of plain error.

The record shows that the jury returned with the following

question: “Please explain the fourth element of capital murder

charge in more detail.” (R. 4262.) The following discussion

then occurred:

“The Court: Okay. Of course, you can't really -–the fourth

element is: The murder was committed by the defendant

for other valuable consideration or for hire. So -– now, I

will read for them defense charge number two which says:

The element of price or award inherent in the word hire -–

is inherent in the word hire, a contract of hire, therefore,

would be a most unusual undertaking if it did not involve

some -–something by the way of recompense.”

(R. 4265.) The circuit court indicated that it was going to

read the fourth element as the jury had previously been

instructed and then give them Graham's requested charge

number two. (R. 4266.) Graham requested that the court read

her requested charges one, two, and three. The court agreed

to do so. Graham indicated that she was satisfied with the

court's resolution of the jury's question. (R. 4271.) The court

reinstructed the jury as requested by Graham as follows:

Graham v. State, --- So.3d ---- (2019)

“The murder was committed by [Graham] for other

valuable consideration or for hire.

“That Lisa Graham is charged with the capital murder

offense -– with the offense of capital murder pursuant to

Code Section 13A-5-47, which requires the State to prove

beyond a reasonable doubt that the murder of Stephanie S.

Graham by Kenneth R. Walton was committed by Kenneth

R. Walton, and that Lisa L. Graham promised or agreed

to give Kenneth R. Walton an unspecified sum of United

States currency or other valuable consideration pursuant to

a contract or for hire.

*43 “The element of price or reward is inherent in the

word hire, a contract of hire, therefore, would be a most

unusual undertaking if it did not involve something by way

of recompense.

“And to define recompense for you and this is -–that means:

“To pay or to reward. And then

also: The State must prove beyond

a reasonable doubt that the payment

of an unspecified sum of United

States currency or other valuable

consideration was impetus for the

murder.”

(R. 4273-74.) The circuit court asked both parties if they were

satisfied, and both the State and defense counsel indicated that

they were satisfied. (R. 4275.)

The State argues that if any error did occur it was invited by

defense counsel's actions. We agree. “The doctrine of invited

error applies to death-penalty cases and operates to waive any

error unless the error rises to the level of plain error.” Snyder

v. State, 893 So. 2d 488, 518 (Ala. Crim. App. 2003).

The State also argues that the circuit court's instructions

were accurate and did not constitute error because the

term “valuable consideration” was a term that was easily

understood and that a circuit court does not err in failing to

define every term in its jury instructions.

“In a criminal case ... the trial court is required to

define technical words and expressions, but not words and

expressions which are of common understanding and self-

explanatory.” State v. O'Donnell, 142 Wash. App. 314, 325,

174 P.3d 1205, 1211 (2007). “ ‘Jury instructions need not

specifically define '[t]erms of common usage and meaning.’

” Law v. State, 249 Ga. App. 253, 254, 547 S.E.2d 784, 786

(2001).

“ ‘When a term, word, or phrase in a jury instruction is

one with which reasonable persons of common intelligence

would be familiar, and its meaning is not so technical or

mysterious as to create confusion in jurors' minds as to

its meaning, an instruction defining [that term, word, or

phrase] is not required.’ ”

People v. Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011),

quoting People v. Thoro Prods. Co., 45 P.3d 737, 745 (Colo.

App. 2001).

“A trial court is not required to define each term or phrase

used in its jury instructions. ‘If we required otherwise, a

jury charge could potentially continue ad infinitum; for

every term in a jury charge could become the subject of

attack.’ Thornton v. State, 570 So. 2d 762, 772 (Ala. Crim.

App. 1990). ‘[W]hether it is necessary for the trial court

to define the term for the jury hinges on the facts of the

case,’ Ivery v. State, 686 So. 2d 495, 501–02 (Ala. Crim.

App. 1996), and on whether ‘the challenged terms can be

understood by the average juror in their common usage.’

Thornton, 570 So. 2d at 772. As this Court recognized in

Roberts v. State, 735 So. 2d 1244 (Ala. Crim. App. 1997):

“ ‘ “Jurors do not sit in solitary isolation booths parsing

instructions for subtle shades of meaning in the same

way that lawyers might. Differences among them in

interpretation of instructions may be thrashed out in the

deliberative process, with commonsense understanding

of the instructions in the light of all that has taken place

at the trial likely to prevail over technical hairsplitting.’ ”

“735 So. 2d at 1252 (quoting Boyde v. California, 494 U.S.

370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)).”

*44 DeBlase v. State, [Ms. CR-14-0482, November 16,

2018] ––– So. 3d ––––, –––– (Ala. Crim. App. 2018).

We agree with the State that the circuit court did not commit

error by failing to define the term “valuable consideration.”

The court's instructions were sufficient and consistent with

Alabama law. Graham is due no relief on this claim.

Graham v. State, --- So.3d ---- (2019)

Penalty-Phase Issues

XIV.

Graham next argues that she cannot be sentenced to death

because, she says, the jury failed to find an aggravating

circumstance to support the death penalty. Specifically,

Graham argues that it was error for the circuit court to instruct

the jury in the penalty phase that its verdict of guilty, in

the guilt phase, automatically established the aggravating

circumstance that the murder was committed for “pecuniary

gain.” See § 13A-5-49(a)(6), Ala. Code 1975 (aggravating

circumstance that murder was committed for pecuniary

gain). She argues that the circuit court's application of this

aggravating circumstance is too broad and is contrary to this

Court's holding in Henderson v. State, 584 So. 2d 841 (Ala.

Crim. App. 1988).

This Court in Henderson stated:

“The appellant argues that proof of murder for hire,

pursuant to § 13A–5–40(a)(7) does not suffice to

automatically establish the aggravating circumstance that

the capital offense was committed for pecuniary gain,

pursuant to § 13A–5–49(6). The appellant bases his

argument on the fact that he was indicted under the ‘for

hire’ portion of the subsection rather than the ‘for pecuniary

or other valuable consideration’ portion of § 13A–5–40(a)

(7).

“While it is clear that the aggravating circumstance, that the

offense was committed ‘for pecuniary gain,’ can be applied

to a capital offense under § 13A–5–40(a)(7), Cook v. State,

369 So. 2d 1251, 1256 (Ala. 1978); Ashlock v. State,

367 So. 2d 560, 561 (Ala. Cr. App. 1978), writ denied,

367 So. 2d 562 (Ala. 1979); Johnson v. State, 399 So. 2d

859, 867 (Ala. Cr. App. 1979), we can find no authority

for the proposition that this aggravating circumstance is

automatically to be applied to the capital offense of murder

for hire. Therefore, we must look to the definition and

application of ‘hire,’ as encompassed in ‘murder for hire,’

and ‘pecuniary gain,’ as encompassed in the aggravating

circumstance.

“....

“Because we feel that ‘pecuniary gain’

in the context of an aggravating

circumstance of capital murder

includes more than strictly money,

and can encompass other valuable

consideration or economic gain,

and because ‘murder for hire’ was

intended by the legislature to include

some sort of consideration, we hold

that the aggravating circumstance of

‘pecuniary gain’ automatically applies

to a ‘murder for hire’ situation

wherein the ‘hiree’ is charged with the

offense.”

Henderson, 584 So. 2d at 859. In Henderson, the defendant

was the “hiree” and not the “hirer” as in this case.

The State argues that in Haney v. State, 603 So. 2d 368 (Ala.

Crim. App. 1991), this Court noted that “our capital murder

statute contemplates that certain aggravating circumstances

will be established by certain capital verdicts.” 603 So. 2d at

379. We further stated:

*45 “[W]e conclude that the aggravating circumstance

that ‘[t]he capital offense was committed for pecuniary

gain’ was established, as a matter of law, by appellant's

conviction of the capital crime of murder for hire, [§

13A-5-40(a)(7)] and the trial court correctly so charged the

jury.

“In so holding, we necessarily find that the aggravating

circumstance was correctly applied to [the defendant] even

though she was the hirer and not the person hired and

was convicted of the crime pursuant to the complicity

statute, § 13A-2-23. We think the aggravating circumstance

should be considered as established where the defendant is

convicted of the capital offense as an accomplice-hirer. We

do not think the legislature intended to make a distinction

between the hirer and the person hired in a murder for

hire or contract for hire situation. The statute does not

distinguish between the hirer and the hiree, but simply

provides that the aggravating circumstance arises if the

‘offense was committed for pecuniary gain.’ Here the

offense was clearly committed for pecuniary gain. In the

eyes of the law, the hirer is as much to be abhorred as the

Graham v. State, --- So.3d ---- (2019)

hiree, and, here, appellant is as guilty as her brot

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