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10/18/82 State of Louisiana v. Lewis T. Graham

October 18, 1982

STATE OF LOUISIANA

v.

LEWIS T. GRAHAM, JR. PUBLIC DOMAIN CITE: STATE

v.

GRAHAM , 81-KA-3328 (LA. 10/18/82); 422 SO. 2D 123



SUPREME COURT OF LOUISIANA 1982.LA.2174

APPEAL FROM THE FIRST JUDICIAL DISTRICT, PARISH OF CADDO, HONORABLE C. J. BOLIN, JR., JUDGE.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DENNIS

On March 31, 1980, Kathleen Graham was beaten to death with a sledgehammer while she slept in the bedroom of her home in Shreveport. Living in the home at the time of Mrs. Graham's murder were her husband, Dr. Lewis T. Graham, Jr., who shared the master bedroom with her, and three minor children, who slept in nearby bedrooms.

About 5:00 a.m., Lewis T. Graham, Jr. called the Shreveport Police Department and advised them that intruders had broken into his home and severely injured his wife. Dr. Graham also called a neighbor across the street, who in turn called another neighbor. This second neighbor went immediately to the Graham home and found Lewis Graham in the front hallway. He saw liquor bottles scattered over the den floor. Also on the floor was a set of binoculars that had been removed from their case. Dr. Graham and the neighbor went to the rooms of each of the children and woke them from their sleep.

The police arrived a few minutes later, and an officer kicked down the locked door of the matter bedroom and entered. He saw Kathleen Graham lying on her back on the left side of the bed. Her face was covered with blood. Also, blood was present on the ceiling, walls, bedspread and linen, and carpet. A sledgehammer and a knife lay on the floor on the left side of the bed. The carpet on the left side of the bed was stained with blood. Much blood was present on the right side of the bed itself. Lewis Graham had blood on the front and back of his tee-shirt and the front of his undershorts. The shower, tub, and lavatory in the master bedroom were wet and the lavatory contained blood.

The overhead garage door was found partially raised. The door leading from the garage to the kitchen was found pulled too, but not closed because the dead-bolt was extruded. Scuff marks appeared on the door facing. A crowbar was found on the garage floor. A can of coins and a flashlight were found on the driveway leading into the garage. The hammer, knife, crowbar, flashlight and coins all belonged to the Grahams.

Police officers found no sign of forced entry. Several neighbors of the Grahams had been home all night and heard nothing unusual. However, two neighbors stated that their dogs had awakened them during the night of the murder.

The coroner revealed the cause of Kathleen Graham's death to be blunt head trauma caused by an instrument consistent with the sledgehammer found in the bedroom. A forensic pathologist testified that Mrs. Graham had sustained at least four blows to the top of her head with a sledgehammer while she was lying on the right side of the bed as it would appear to a person standing at the foot. These blows were struck in rapid succession and rendered her unconscious and incapable of voluntary movement. She did not die immediately but lived for some fifteen to thirty minutes after the first blows. After she was beaten on the right side of the bed, Mrs. Graham was moved onto her back on the left side of the bed as viewed from its foot, where she received what the expert considered to be the final blow, a massive blow to her forehead also delivered with the sledgehammer.

Lewis Graham was not seriously injured. He sustained the following wounds: an abrasion on his forehead; a cut across the entire palm of his left hand which required no treatment; and an incision type wound on the flank underneath his left arm which required one stitch.

On the morning of the murder, Lewis Graham recounted the following version of facts to the Shreveport police:

His wife woke him between 2 and 3 a.m. hearing noises. Dr. Graham checked in several rooms of the house but found all the doors closed and nothing unusual. He returned to the bedroom and set his alarm clock for a time close to 5 a.m. so that he could study. He placed the clock on the floor. He got into the left side of the bed and fell into a deep sleep. He next remembers the bed lurching or shaking. He heard a scream and was pushed or pulled from the bed. He felt more than one person was handling him and felt a sharp pain under his left arm. A brief struggle took place. He was then thrown across the room where he fell on his stomach and lay unconscious. He was unable to describe anything about his assailant(s), although he felt that there were probably two of them.

When Dr. Graham awoke he was on his stomach. He turned on the bedroom light and saw a horrible scene, knowing immediately his wife was probably dead. He went to the bathroom to see how badly he had been hurt. He noticed the blood on his shirt. He then turned the bedroom light off and locked the master bedroom door so that his children would not see this horrible scene. He proceeded to the kitchen where he looked up the number of the Shreveport Police, called them and then a neighbor, Mrs. Godwin. She in turn called another neighbor, Mr. Siragusa. Dr. Graham put on his pants which were located in the family room, turned on the porch light and waited for the police to arrive. Mr. Siragusa arrived before the police and they, Dr. Graham and his neighbor, then checked on the children. He sent the children across the street. He noticed some cabinet doors opened in the den and liquor bottles strewn on the den floor.

On several subsequent occasions, including during his testimony at trial, Dr. Graham related his version of the events surrounding his wife's death which, except for a few inconsistencies, substantially tracked this first statement.

The Northwest Criminalistics Laboratory performed certain tests on physical evidence seized from the Graham residence. The tests revealed the following: Kathleen Graham had blood type "A"; Lewis T. Graham, Jr., had blood type "O"; the sledgehammer was determined to have type "A" on it; the knife was determined to have type "O"; the blood on the bed linens was of type "A". The stain under the left arm of the defendant's tee-shirt was type "O"; the spatters on the front of the tee-shirt and the drips on the back and front of the right shoulder were type "A". The spatters on the defendant's undershorts were type "A". They concluded that the blood spattering the headboard of the bed, the lamp, the clock and various places was all human blood. Shreveport police identification personnel discovered a latent fingerprint impression on the handle of the knife which was matched to the defendant.

Mr. Herbert McDonnell, the state's blood spatter expert, examined the tee-shirt of the defendant and concluded that the stains on the front and back on the right shoulder of the shirt were consistent with the type of cast-off spatter found on the shirt of a person who has administered a beating with an object similar to a sledgehammer. He considered that the size and concentration of the blood stains on the front of the defendant's tee-shirt indicated that the defendant was within two to four feet of the victim at the time she was beaten. He identified what he considered to be wipe marks down the left side of the defendant's tee-shirt. Mr. McDonnell found blood which had coagulated before it was scattered by the sledgehammer's blow on the lamp and headboard of the bed and on the front of the defendant's undershorts. He testified that human blood coagulates in three to five minutes which would mean that a time period of three to five minutes elapsed between the two beatings of Mrs. Graham. Mr. McDonnell determined from the size and concentration of the blood spatters on the front of the defendant's undershorts that the defendant was within two to four feet of the victim when the last beating was administered.

Mrs. Judith Bunker, the defendant's blood spatter expert, testified that the spots on the front of the defendant's clothing could have been minute particles of tissue. She further testified that she was unsure as to the coagulation time of blood, but that she would agree with whatever coagulation time was given by Mr. McDonnell, with whom she was acquainted. In a separate context, relating to the amount of blood lost by the defendant, Dr. Petty, a forensic pathologist, testified that coagulation times vary with individuals.

Defendant, Dr. Lewis T. Graham, Jr., was charged by indictment with the second degree murder of his wife. A Caddo Parish jury convicted the defendant as charged by a vote of 10-2 and the trial judge sentenced him to life imprisonment. He moved for a new trial on several grounds and for a motion in arrest of judgment, but the trial judge overruled all of his motions. In this appeal, the defendant makes fourteen assignments of error. Because we find that each of his assignments is without merit, we affirm the defendant's conviction and sentence.

1. SUFFICIENCY OF EVIDENCE

Defendant contends that the evidence is constitutionally insufficient to support his conviction because all of the evidence was circumstantial as to his identity as the killer and did not exclude every reasonable hypothesis of his innocence. We conclude that this assignment is without merit. The hypothesis of innocence advanced by the defendant is not a reasonable one.

The Due Process Clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction is based to determine whether it is minimally sufficient. A defendant has not been afforded dur process, and his conviction cannot stand, unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). Additionally, we are governed by our statutory rule as to circumstantial evidence: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. R.S. 15:438.

In previous opinions we have attempted to formulate a single precept incorporating both standards. See, e.g., State v. Austin, 399 So.2d 158 (La. 1981). ("Therefore, when we review a conviction based upon circumstantial evidence we must determine that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence had been excluded." Id. p. 160). Upon further reflection, however, a merger does not appear to promote clarity but could lead to a distortion of the standards. A combination of the rules may incorrectly imply that, when all of the evidence of the defendant's guilt is circumstantial, due process requires more than evidence which would satisfy any rational juror of proof of guilt beyond a reasonable doubt. On the other hand, an in-tandem articulation may seem improperly to diminish the requirement of the circumstantial evidence rule by implying that, in a close case, this court will defer to the jury's finding rather than follow its own determination of whether there is a reasonable hypothesis of innocence. Although in many instances separate and dual applications of the rules will yield the same result, out of an abundance of caution we will proceed to apply each standard separately, as it was given to us by the framers.

The characterization of evidence as "direct" or "circumstantial" points to the kind of inference which is sought to be drawn from the evidence to the truth of the proposition for which it is offered. If the inference sought is merely that certain facts are true because a witness reported his observation and the assumption that witnesses are worthy of belief, the evidence is direct. When, however, the evidence is offered also for some further proposition based upon some inference other than merely the inference from assertion to the truth of the fact asserted, then the evidence is circumstantial evidence of this further fact-to-be-inferred. McCormick, § 185 p. 435. In the present case, although direct evidence was introduced to prove that the victim was murdered in her bed with a sledgehammer while the defendant was present, it qualifies only as circumstantial evidence of the crucial fact-to-be-inferred, i.e., that the defendant was the killer.

One hypothesis of innocence is suggested by defendant's arguments and testimony: Two or more intruders entered the Graham house on the night in question without awakening the Grahams or their three children, escaping the attention of the Graham's dog, and leaving only questionable signs of forcible entry. They picked up a sledgehammer and a knife in the house and proceeded to the main bedroom where the Grahams were sleeping. One or more of the intruders seized the defendant while another beat his wife's head with a sledgehammer. At this time, the front of the defendant's tee-shirt and shorts were spattered with his wife's blood. During a brief struggle, the defendant received a small one-stitch wound from the knife, and was rendered unconscious when he was thrown against a wall. The intruders decided not to molest him anymore but continued to savagely beat his wife's head. Because the defendant came to rest face down he received blood spatters on the back of his tee-shirt and shorts in addition to that on the front. During or after the sledgehammer murder one or more of the intruders took a can of coins which defendant said contained $150 in dimes, but later the can was discarded in front of the house. They also scattered some bottles of liquor across the den floor and tampered with a set of binoculars. The murderers overlooked or were not interested in several items of value such as Mrs. Graham's diamond ring and an antique pistol. They departed without being seen by anyone, even the defendant who was unable to describe them, without disturbing or awakening any of the three children, and again without being detected by the family dog.

We do not think this is a reasonable interpretation of the situation, assuming every fact to be proved that the evidence tends to prove. The odds are heavily against the coincidence of the series of unlikely events upon which the hypothesis depends. The possibility that the murder occurred in this way is reduced further by the facts inconsistent with defendant's theory which the evidence also tends to prove. In comparison with the prosecution's hypothesis of defendant's guilt, which is consistent overall with the evidence, the defendant's circumstantial theory of innocence is remote.

Severally, the events of the defendant's hypothesis are each unlikely: A forcible yet silent, almost traceless entry by two unidentified and undescribed intruders; a heinous sledgehammer murder of a woman in her sleep by selective killers who had little malice toward her husband and none toward her children; a fortuitous manipulation of defendant's torso during the slaying that gave him the bloody coating of a murderer; a highly selective burglary by criminals who preferred dimes to other more precious valuables; a trackless disappearance of villains seen only by defendant, who silently, efficiently committed their bizzare crime with implements they discovered at the house and left no clues to their identities behind. The odds against all of these events taking place in one criminal transaction are extremely high.

The hypothesis of defendant's innocence conflicts with several of the facts which the evidence tends to show. According to the state's expert witness, the cast off blood stains on defendant's shoulders were not consistent with his asserted facedown reclining position but were consistent with his guilt. The same expert's testimony tends to prove that there was coagulated blood on the front of defendant's underclothes which could not have been obtained consistently with defendant's story but which was consistent with his guilt.

There were many other details which were more fully consistent with the prosecution's theory than with a hypothesis of innocence. The blood spatters on defendant's shorts were denser than those on his tee shirt, indicating a greater likelihood that he was standing when the spatters occurred. The blood spatters on both front and back of defendant's clothes were totally consistent with his role as the murderer. According to the state's experts no one's fingerprints but the defendant's were found on the knife. Although defendant claims he was cut with the knife before being thrown faced down there was no blood at the place he said he landed. There were transfer patterns on defendant's tee-shirt consistent with the wiping of blood from an instrument such as a knife, although it could not be said conclusively that it was caused by the knife in the instant case.

Consequently, we conclude that, assuming every fact that the evidence tends to prove, the evidence excludes every reasonable hypothesis of innocence. For all of the reasons expressed, we further conclude that defendant was not denied due process of law and that this conviction is clearly based upon evidence from which, when viewed in the light most favorable to the prosecution, a rational juror could find that the essential elements of defendant's crime had been proved beyond a reasonable doubt. Thus, the evidence is both constitutionally and statutorily sufficient to support the defendant's conviction.

2. JURY EXPERIMENT

Defendant contends that the trial court committed reversible error in denying his motion for a new trial based upon an independent blood coagulation experiment by several jurors during their deliberations. We conclude that this assignment is without reversible merit because there is not a reasonable possibility that the juror's experiment affected the verdict.

According to evidence educed by the defendant, after the case had been submitted to the jury one of the jurors, in the presence of four others, pricked his finger and determined that it took four and one-half minutes for his blood to coagulate. The experiment occurred at about 1:30 a.m. in a hotel room where the five jurors had continued to discuss the case after earlier jury deliberations from 5:20 p.m. to about 12:00 p.m. had ended without a verdict. The next morning, which was Sunday, the jury began deliberations shortly after 8:15 a.m. and by 9:00 a.m. reached a verdict of guilty by a 10-2 vote.

Our law provides that the jury shall be sequestered during its deliberations, after the judge delivers the charge, so as to be secluded from outside communications. La.C.Cr.P. art. 791. The purpose of sequestering jurors is to protect them from outside influence and from basing their verdict upon anything other than the evidence developed at trial. State v. Marchand 362 So.2d 1090 (La. 1978); State v. Hunter, 340 So.2d 226 (La. 1976); Turner v. Louisiana 379 U.S. 466, 85 S.Ct. 546, 12 L.Ed 2d 424 (1965). See also C.Cr.P. at 793 (relative to the use of evidence in the jury room).

Accordingly, a juror who considers evidence not developed or admitted at trial violates his sworn duty and may be guilty of misconduct. Under our statutory law, however, no juror is competent to testify to his own or his fellows' misconduct or to give evidence to explain, qualify, or impeach any indictment or any verdict found by the body of which he is or was a member. R.S. 15:470. Nevertheless, it is now clear that the statute must yield and that our courts are required to take evidence upon well pleaded allegations of prejudicial juror misconduct violating an accused's constitutional right to due process, to confront and cross-examine witnesses or to a trial by a fair and impartial jury and to set aside the verdict and order a new trial upon a showing that a constitutional violation occurred and that a reasonable possibility or prejudice exists. *fn1 Durr v. Cook 589 F. 2d 891 (5th Cir. 1979), vacating State v. Durr 343 So.2d 1004 (La. 1977). Because the accused is not required to show actual prejudice, the state may legitimately invoke the prohibition of R.S. 15:470 to bar inquiry into the mental processes of an individual juror. Cf. State v. Wisham, supra; State v. Marchand, supra; State v. Abney 347 So.2d 498 (La. 1977).

In the present case, the trial judge correctly followed the law at the new trial motion hearing by taking evidence upon the allegations of unconstitutional and prejudicial juror misconduct. He also correctly excluded any evidence of actual effect or prejudice upon the jury deliberations. Finally, he ruled correctly in our opinion that it had not been shown that a reasonable possibility of prejudice existed.

The problems presented by an experiment conducted by jurors on their own defy precise, systematic analysis. A juror is expected to draw upon his general knowledge and experience in deciding the case, and he is encouraged to participate in full and robust debate and deliberations with his fellows in reaching a verdict. However, he should not consider facts relating to the case unless introduced at trial under constitutional and legal safeguards. State v. Sinegal, 393 So.2d 684 (1981). Accordingly, when a juror passes beyond the record evidence in reaching a decision, whether a new trial will be granted depends upon the magnitude of the juror's deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury's verdict. All of these elements must be weighed in determining whether there is a reasonable possibility that the defendant's right to a fair trial has been prejudiced.

The jurors' experiment in the present case does not represent a radical departure from our expectations that a juror will employ his own ordinary experience in the deliberations. Any normal human being will experience his share of childhood scrapes, razor nicks, blood test pricks and various other episodes producing practical knowledge of blood coagulation. To say that a juror could not pass a fraction of an inch beyond the record to recall and employ this type of practical knowledge in his deliberations is to ignore centuries of history and the true function of the jury. Cf. United States ex rel Owen v. McMann, 435 F.2d 813 (2d Cir. 1970), cert. denied 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed. 2d 646. Although the juror's experiement in this case cannot be classified as proper conduct, it was performed within the jury room and dealt with a subject well within the experience and practical knowledge of all jurors. As contrasted with other cases, it did not involve jurors conducting tests of matters beyond their normal ken or going outside the jury room to obtain esoteric knowledge or special information pertaining directly to the case. See e.g. State v. Sinegal, supra; Durr v. Cook, supra. Consequently, the danger that the juror's common sense would be overcome by the experiment's instructive or dramatic effect was well tempered by an average juror's practical experience with blood coagulation.

The jurors' timing of blood clots on a pricked finger did not deprive the defendant of the benefits of constitutional and legal safeguards to the same extent as other tests described in reported decisions. The experiment here did not depend heavily on the jurors' powers of observation or on the reliability and credibility of a juror's report upon phenomena observed outside the jury room. Cf. Durr v. Cook, supra. Consequently, the loss of an opportunity to confront and cross-examine those who conducted the experiment was not as potentially prejudicial to the defendant. Furthermore, the rules of evidence would not necessarily have barred the introduction of the blood clot test evidence in this case. Demonstrative evidence offered for its circumstantial value may be admitted within a broad discretionary power of the trial court to weigh the probative value of the evidence against whatever prejudice, confusion, surprise and waste of time are entailed. McCormick § 212, p. 527. Consequently, the practical benefits the defendant lost because he was not able to assert his constitutional and legal rights at trial with respect to the experimental evidence were not of crucial magnitude in this case.

The juror's experiment tends to corroborate the prosecution expert witness' opinion that human blood coagulates in three to five minutes. In our opinion, however, there is not a reasonable possibility that the jurors' experiment contributed decisively to the guilty verdict. In a different context another type of experiment could prevent a jury from recognizing a reasonable doubt or a reasonable hypothesis of innocence presented by the evidence. In the present case, however, there is no reasonable hypothesis of innocence and the evidence clearly supports a finding of guilt beyond a reasonable doubt even without the state's theory involving blood coagulation time. Moreover, the experiment in this case, when viewed in the context of the evidence presented at trial and the ordinary experience most persons have had with blood coagulation, does not appear to be so persuasive or dramatic as to skew the judgment of the jury or cause it to disregard the evidence presented at trial.

During the trial, Mr. McDonnell testified that human blood coagulates within three to five minutes. Based on this and his opinion that some of the blood on the defendant's clothes had coagulated before it was spattered on defendant, this expert witness expressed the opinion that defendant could not have received the blood ...


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