NORMAN GRAHAM V. COMMONWEALTH OF KENTUCKY
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RENDERED : AUGUST 26, 2010
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NORMAN GRAHAM
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APPELLANT
ON APPEAL FROM TODD CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
NO . 07-CR-00001
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
A Todd County jury convicted Appellant Norman Graham of murder and
first-degree rape . He seeks reversal of his convictions on four grounds : the
lack of a Daubert hearing on DNA evidence; juror misconduct ; prosecutorial
misconduct; and undue delay in his prosecution . Finding no error, this Court
affirms the Todd Circuit Court.
I . Background
The victim in this case, Kay Williams, was raped and murdered 30 years
ago on June 30, 1980 . In the months before the rape and murder, Appellant
had begun an intimate relationship with Williams . He met her at the Tiny
Town truck stop, where she waitressed. The pair started dating and she would
stay most nights at Appellant's trailer.
Appellant spent the day before Williams's death with her. They woke up
that morning in Appellant's trailer. According to Appellant, they had sexual
relations before going to Williams's grandmother's house for lunch with her
family. What occurred after this point is disputed.
Appellant testified they immediately returned to his trailer where
Williams proceeded to take a nap . He maintained that he left the trailer while
she napped and that he never saw her alive again .
On the other hand, Regina Alexander, Kay Williams's sister, testified
that, after lunch at the grandmother's house, she and Williams both drove from
their grandmother's house to their parents' house, where both she and
Williams lived. She testified that once there, Williams informed her that
Williams and Appellant were having problems and their relationship would
probably soon end. According to Regina, Kay Williams then drove their mother
to the home of another sister, Judy Stokley, who happened to live next to
Appellant's trailer. Stokley also testified that Williams dropped their mother off
there and that it was the final time she saw Williams alive.
Appellant admitted that after he and Williams both returned to the
trailer, he left again that evening to meet his ex-wife at the Red Carpet Inn. He
further admitted that his ex-wife wore a strong perfume that day. The
Commonwealth used that admission in closing argument as an explanation for
a theorized fight breaking out between Appellant and Williams when he
returned to the trailer, ultimately consummating in rape and murder .
Appellant, however, denied having returned home that night.
The next day, June 30, after being alerted by Appellant, police found
Williams naked and dead in Appellant's bed inside his trailer. Her hands and
feet were bound together, her jumpsuit had been cut off, and she had been
stabbed 25 times in the chest. Investigators also discovered sperm inside her
vagina and on her jumpsuit . However, the examiner who performed the
autopsy explained that, at the time, "no doctor in the world [could] tell you
what male produced these sperm. We're not that scientific yet ."
Soon thereafter, in 1981, the Commonwealth prosecuted Appellant for
the murder, but the trial resulted in mistrial from a hung jury. Perhaps
because of weaknesses in its case, particularly, the lack of physical evidence
connecting Appellant to the crime, the Commonwealth chose not to retry
Appellant at that time. Thus, the Commonwealth had the indictment
dismissed without prejudice and the case was closed .
In 2003, the sperm found on Williams was reexamined using modern
DNA testing. It turned out to match Appellant's DNA to a statistical probability
of 1 in 506 trillion. After excluding other suspects through DNA analysis, the
Commonwealth sought to reindict Appellant, this time for both rape and
murder . At the new trial in Todd Circuit Court, the Commonwealth presented
the DNA evidence that the sperm found on Williams's person derived from
Appellant. The jury convicted Appellant of both first-degree rape and murder.
On December 30, 2008, the trial court entered a final judgment of conviction
and, following the jury's recommendation, sentenced Appellant to 40 years on
each count, to run concurrently.
Sometime after trial, Appellant became aware of circumstances giving
rise to a possible claim of jury misconduct . He first raised this claim on March
3, 2009, in a motion for a new trial presented to the circuit court. After
conducting an extensive evidentiary hearing on the alleged juror misconduct,
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the trial court denied the motion for a new trial on April 30. Appellant now
contests this ruling, as well as the other issues discussed herein, as a matter of
right . Icy. Const. § 110(2)(b) .
H. Analysis
Appellant contests his convictions on four grounds. He first cites the
trial court's failure to conduct a Daubert hearing on the DNA analysis as
grounds for reversal. See Daubert v. Merrell Dow Pharms., Inc., 509 U .S . 579
(1993) . Second and third, Appellant claims juror and prosecutorial
misconduct. Finally, Appellant urges that the nearly 28 year lapse between the
crime and his conviction violates his due process protection against undue
delay in prosecution.
A. Daubert Hearing
Prior to trial, Appellant asked for a Daubert hearing to determine the
validity of the DNA analysis . The Commonwealth countered that a Daubert
hearing is unnecessary for DNA analysis and that the court should instead
take judicial notice of its reliability. The court found that DNA analysis is
indeed reliable and, therefore, declined to conduct a Daubert hearing.
The method used to analyze Appellant's DNA is called Polymerase Chain
Reaction ("PCR") analysis . As this Court noted over ten years ago, "DNA
analysis using the PCR method has . . . been recognized as valid and
scientifically reliable ." Fugate v. Commonwealth, 993 S.W .2d 931, 936 (Ky.
1999) . "It is clear that the PCR method of DNA analysis has been subjected to
extensive peer review." Id. Due to scholarly review and acceptance, the Court
held in Fugate that in that trial and in future cases, "DNA comparison analysis
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using the . . . PCR method[] is admissible without being the subject of a pretrial
Daubert hearing ." Id. at 937-38 . Thus, the trial court properly declined a
Daubert hearing, instead allowing Appellant to try to undermine the credibility
of the DNA evidence at trial. See id. at 938 . ("The opposing party could
question the handling of the samples, the chain of custody, the accuracy of the
procedures, the quality of training of the particular person or persons who
conducted the actual tests and whatever other challenge could be made to the
credibility of the evidence .") .
In fact, Appellant's primary allegation of fault with the DNA evidence
related not to the method of analyzing the DNA, but instead to the source of the
DNA . Essentially, Appellant questioned the authenticity of the DNA alleged to
have been found on Williams's body due to the length of time between the
discovery of the body and trial. Of course, the opportunity for the
Commonwealth to authenticate the DNA occurs not at a Daubert hearing, but
at trial, where the chain of custody is proven before the evidence is introduced .
The Commonwealth was indeed able to authenticate the DNA at trial and it
subsequently was appropriately admitted into evidence .
B. Juror Misconduct
Evidence of possible juror misconduct only came to light through
information provided by certain individuals after the entry of final judgment
and after Appellant's initial notice of appeal. The issue was, therefore, not
raised at trial, but instead for the first time in a motion for a new trial. When
that motion was denied, Appellant filed a supplemental notice of appeal,
addressing the juror misconduct issue to this Court.
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The Commonwealth urges that this issue is not properly before the Court
because the supplemental notice of appeal-raising the juror misconduct
issue-was never consolidated with Appellant's initial appeal . The initial notice
of appeal applied to the original judgment of conviction and sentence . The
supplemental notice of appeal applied to the order denying a new trial due to
newly discovered evidence. However, it would waste judicial resources for this
Court to resolve these two matters separately . As the Commonwealth
concedes, this Court has the power to join them sua sponte into a single appeal
and hereby does so.
Turning to the merits of the juror misconduct issue, two types of
problems arise, both concerning the juror Charles Nabb: (1) Nabb's
relationship with the victim and her family and (2) Nabb's interactions with the
family and another juror during trial.
1 . Relationship with the Family
Prior to trial, counsel for both sides engaged in individual voir dire with
Nabb, just as with other jurors . In that conversation, Nabb was asked whether
he "kn[ew] the [victim's] family." Nabb simply responded, "No."
In the months after trial, Teddy Robertson contacted Appellant's counsel
and disclosed information about Nabb's past relationship with the victim and
her family, suggesting possible bias . Robertson is the only person to have
come forward describing any such relationship . Robertson described at a posttrial hearing how he himself was very close with the victim's family and would
spend significant amounts of time at their house. Robertson also claims to
have worked for Nabb for approximately twenty years and that every other day,
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Nabb would pick him up from the victim's family's home . According to
Robertson, when Nabb came by to pick Robertson up, he would frequently
converse with the victim's mother, but Robertson never heard what they were
talking about.
Robertson further testified that Nabb "may" have dated Kay Williams, but
he failed to provide any substantial basis for this possibility. Robertson
suggested that they may have dated because they knew each other, but when
asked how they knew each other, he simply responded that everyone in their
hometown of Guthrie knew one another. To that extent, Robertson further
acknowledged that the relationship between Nabb and the victim and her
family was not necessarily one of friendship, but more one of
acquaintanceship .
Robertson's testimony is not without some bias itself. He admitted that
his ex-wife, Lisa Potter, with whom he remains in contact, and Appellant are
life-long friends and she has long professed his innocence . In fact, Robertson
admitted that his decision to provide information about Nabb was directed by
Potter.
Robertson's testimony was also called into question by its contradiction
from others . Nabb himself died shortly after trial; however, the Commonwealth
questioned Donna Nabb, Charles Nabb's ex-wife, about the juror's relationship
with the victim's family. She could not recall her ex-husband having had any
relationship with the victim's family and firmly denied that either he or she
knew the victim herself at all . Donna Nabb further stated that neither
Robertson nor anyone else ever worked for her husband . Regina Alexander,
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Kay Williams's sister, also testified that neither she nor her mother ever had a
social relationship with Charles Nabb.
Based on this post-trial testimony, Judge Harris made the following
finding:
The Court finds that contrary to his answer given during individual
voire dire examination, juror Charles Nabb had some degree of
acquaintance with the family of Virginia Meriwether (the mother of
victim Kay Williams) but that the relationship was casual and not
close enough to be considered more than acquaintance, as
opposed to friendship .
"'[T]he trial judge is in the best position to determine the nature of
alleged juror misconduct and the appropriate remedies for any demonstrated
misconduct ."' Ratliff v. Commonwealth, 194 S. W.3d 258 (Ky. 2006) (quoting
United States v. Sherrill, 388 F .3d 535, 537 (6th Cir. 2004)) . A trial judge's
factual findings are reviewed only for clear error. Miller v. Eldridge, 146 S.W.3d
909, 915 (Ky . 2004) . The trial court's determination that Nabb and Kay
Williams's family were casual acquaintances, but not friends, was not clearly
erroneous .
The question then becomes whether Nabb's casual acquaintance with the
family is grounds for a new trial. This Court has established a three-pronged
test to determine whether a new trial should be granted in this type of
situation . "First, a material question must have been asked. Second, the juror
must have answered the question dishonestly. And finally, the truthful answer
to the material question would have subjected the juror to being stricken for
cause ." Taylor v. Commonwealth, 175 S.W .3d 68, 74-75 (Ky. 2005) . Thus, if
Nabb answered a material question untruthfully, where a truthful answer
would have had led to him being struck for cause, a new trial must be granted .
As to the first prong, there is no doubt that the question asked of Nabb"Do you know the family?"-was material . Whether Nabb knew the family
members and, more importantly, had a substantial relationship with them,
directly implicated his bias in the case . Any question implicating a juror's bias
in such a manner must be considered material. Cf. id. at 75 ("A question about
whether a potential juror believes she can consider the full range of penalties
upon a conviction for murder is about as material as they come.") .
Turning to the second prong, Nabb's response to the question was found
to be false. According to Judge Harris, "contrary to his answer" that he did not
know the family, "Nabb had some degree of acquaintance with the family ."
(Emphasis added.) This does not necessarily mean that Nabb was dishonest,
however. A juror answering contrary to the truth does not inherently equate to
dishonesty; the juror could simply be mistaken . In this case, it is possible that
Nabb honestly believed that he did not "know" the family. To "know" someone
can have many different meanings and to "know" someone in a small town
such as Guthrie may mean something different than in a larger city.
This is not to say that Nabb was being forthright in voir dire. It is
possible that Nabb was indeed trying to conceal his relationship with the family
in order to hide any possible bias, but it is not this Court's role to make such a
factual determination . It should be noted that any uncertainty as to Nabb's
relationship with the family, or at least how Nabb described the relationship,
could have been clarified by more specific and concrete questioning during voir
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dire, e .g., "Have you ever met the victim or her family?" or "Have you ever
conversed with them?"
Even if Nabb's response were found to be dishonest, Appellant has failed
to meet the third prong of the test by proving that a "truthful" response would
have led to Nabb being struck for cause . As the trial court found, and as the
testimony from the post-trial hearing supports, Nabb was merely a casual
acquaintance with the family, not a friend. "[A] casual acquaintance [is] not
the close relationship needed to imply bias on the part of the juror ." Sanders v.
Commonwealth, 89 S .W.3d 380, 388 (Ky. 2002) ; see also Hatten v. Quarterman,
570 F.3d 595, 602 (5th Cir. 2009) ("Texas law requires more than the existence
of a casual acquaintance with the victim of a crime or the victim's family to
make a prospective juror subject to challenge for cause . The result is no
different under the federal due process standard.") . This is particularly so
when whatever relationship the juror was said to have had with the family was
"remote in time" to the trial. Marsillett v. State, 495 N.E.2d 699, 707 (Ind.
1986) .
Absent any determination by the trial judge that the casual acquaintance
led to any bias, a new trial should not be ordered. This Court has repeatedly
held that being a distant relative to the victim does not inherently impute bias .
See Ward v. Commonwealth, 695 S.W .2d 404, 407 (Ky. 1985) (no reversal
where one juror was ex-brother-in-law and another a distant cousin) ; Cox v.
Commonwealth, 255 Ky. 391, 392, 74 S. W.2d 346, 347 (1934) (no reversal
where "one juror is shown to be a second cousin of the wife of a brother of the
deceased, and his wife's uncle married a niece of the deceased") . "It is within
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the discretion of the trial judge to determine whether or not there is any chance
of prejudice resulting from a remote blood relationship between a juror and a
victim ." Commonwealth v. Carter, 282 A.2d 375, 377 (Pa . 1971) . "Obviously,
the same standard should be applied where the juror is only a casual
acquaintance of a relative of the victim." Id. at 377-78 . While the trial court
did not explicitly rule that the relationship was too slight to impute bias, he
implicitly did so by denying Appellant a new trial. See Montoya v. Scott, 65
F.3d 405, 419 n.29 (5th Cir. 1995) ("implicit finding of impartiality in [trial
court's] denial of the petitioner's challenge for cause") . Based on the trial
court's finding that Nabb and the family were merely casual acquaintances and
that no actual bias stemmed from that familiarity, it was not required to strike
Nabb for cause . Thus, a new trial is not mandated on these grounds .
2. Juror Interactions During Trial
Appellant also complains that Nabb's interactions with the victim's family
and another juror during trial require the verdict to be set aside .
a. Interaction with Family
Teddy Robertson, Lisa Potter, and Caleb Stewart all testified post-trial
that they witnessed Nabb interacting with the victim's family on breaks during
the first day of trial . Potter was the only one of the three who could identify the
family members ; according to her, Nabb spoke with Regina Alexander, Judy
Blick, Roxanne Murvine, and Amy Whitaker . None of the witnesses overheard
anything that was said.
Regina Alexander, one of the family members alleged by Potter to have
conversed with Nabb, testified to the contrary, denying having talked to any of
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the jurors . Sabrina Sawyers, Kay Williams's daughter, who was also at the
trial, could not recall either herself or Regina talking to Nabb either.
As to these allegations, the trial court made the following findings :
The Court finds that during the October 13-17, 2008 trial, both
before and after he was sworn as a juror in the case, Charles Nabb
had some conversation and contact with members of Kay
Williams's family in the environs of the courthouse . However,
there is no evidence that juror Nabb discussed the pending case
with those family members .
These findings are consistent with the testimony at the post-conviction hearing
and therefore are not clearly erroneous .
Nabb's brief conversation and contact with family members was
unquestionably inappropriate . Witnesses are barred by statute from
"convers[ing] with the jury or any member thereof upon any subject after they
have been sworn." KRS 29A.310(2) .
The family members who were witnesses at trial and conversed with
Nabb were in direct violation of the law. Nonetheless, "[a] mistrial is not
warranted if the conversation between the witness and the juror was `innocent'
and matters of substance were not involved ." Talbott v. Commonwealth, 968
S .W .2d 76, 86 (Ky. 1998) ; Owings v. Webb's Ex'r, 304 Ky. 748, 752, 202 S .W.2d
410 (1947) . "The true test is whether the misconduct has prejudiced the
defendant to the extent that he has not received a fair trial." Talbott, 968
S.W.2d at 86 (citing Byrd v. Commonwealth, 825 S .W .2d 272, 275 (Ky. 1992)).
In previous cases concerning conversations between jurors and
witnesses, Kentucky courts have been able to draw a bright line between
conversations about the case and conversations about unrelated matters . The
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former prejudice the defendant, whereas the latter are harmless . Compare
Doyle v. Marymount Hospital, 762 S .W.2d 813 (Ky. App . 1988), with Talbott,
968 S .W.2d at 86, and Jones v. Commonwealth, 662 S .W .2d 483, 484 (Ky. App.
1983) . But what happens when no one testifies to what the conversation was
about? There is no way to determine or even to conjecture about the effect of
the error, particularly, whether it was prejudicial or not.
Kentucky's harmless error rule provides as follows:
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order,
or in anything done or omitted by the court or by any
of the parties, is ground for granting a new trial or for
setting aside a verdict or for vacating, modifying or
otherwise disturbing a judgment or order unless it
appears to the court that the denial of such relief
would be inconsistent with substantial justice. The
court at every stage of the proceeding must disregard
any error or defect in the proceeding that does not
affect the substantial rights of the parties .
RCr 9 .24 . The list of errors subject to the rule are evidentiary errors, ruling
errors, errors by the court, and errors committed by one of the parties. RCr
9 .24 . Notably absent from this list is error committed by a juror or witness, as
occurred here . Nonetheless, without any other guidance or a binding rule on
how such "juror errors" or "witness errors" should be treated, this Court will
utilize the same rule provided for most other errors . It makes particular sense
that an error in something done by a witness should be subject to the same
harmlessness test as an error committed by a party. For a juror to converse
with a witness cannot be any worse than conversing with a party; such an
error committed by a witness is at least as likely to be harmless .
The rule generally states that an error is not ground for a new trial
"unless it appears to the court that the denial of such relief would be
inconsistent with substantial justice." Id. (emphasis added) . To order a new
trial, the court must affirmatively find substantial injustice apparent . The
default approach of the rule is against reversal, thus placing the burden on the
party-in this case, Appellantclaiming the error . Absent such a showing, a
reviewing court has no reason, other than raw speculation, to think that error
had a "substantial influence" on the judgment ; nor is it likely that the court
would be "left in grave doubt" about such influence. The lower court did not
find the conversation to have caused substantial injustice to Appellant, nor
should it have . Without any record of the brief conversation between Nabb and
the family members, Appellant cannot meet his burden.
b. Interaction with another Juror
The only testimony regarding Nabb's conversation with another juror
comes from Calvin Jones . Jones testified that during the final day of trial, he
observed Nabb conversing with another juror during a break. At the post-trial
hearing, he reported the following dialogue between the jurors :
Nabb: They haven't shown me anything yet new to convince me .
Juror: They haven't shown me anything either .
From this observation, Jones reasonably inferred the jurors were talking about
the case and would rule in Appellant's favor. No one has confirmed or
contradicted Calvin Jones' observation. The trial court therefore found that
Nabb might have in fact been talking to the juror about the case, but even if he
was, there was no indication of prejudice against Appellant by either juror.
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Jurors are admonished not to discuss an ongoing case with one another
(or anyone else) . RRS § 29A.310(1) . However, even if the jurors violated that
admonishment in this instance, their discussion was harmless . If anything,
the conversation indicated the jurors were leaning Appellant's way. The jurors
both declared that they had of been convinced, and the party bearing the
burden to "convince" was, of course, the Commonwealth . Moreover, Jones,
after hearing the conversation, was left with the impression that Appellant
would be acquitted. Thus, this Court agrees with the trial court that the
conversation was not prejudicial to Appellant.
C. Prosecutorial Misconduct
In closing argument, the Commonwealth articulated its theory of the
rape and murder. The theory was that when Appellant returned home at night,
he smelled of perfume from having spent time with his ex-wife, thus triggering
a fight between himself and Williams. As Williams had already suggested to
her sister that she was considering ending the relationship, this was likely a
natural point to do so . The Commonwealth argued that she did just that, thus
enraging Appellant. Appellant then bound Williams's legs together, raped her,
leaving his semen, and finally murdered her .
Appellant argues that there was no evidence of this dispute occurring
and, therefore, it was misconduct for the prosecutor to describe it in closing
argument.
We disagree that there was any misconduct in the prosecution's closing
argument. "This Court has repeatedly held that a prosecutor is permitted wide
latitude during closing arguments and is entitled to draw reasonable inferences
15
from the evidence." Commonwealth v. Mitchell, 165 S.W.3d 129, 132 (Ky.
2005) . It is a reasonable inference to conclude that Williams would have been
upset at Appellant smelling of his ex-wife's perfume . While Appellant denies
having returned home that night at all, his semen found on Williams, among
other things, creates a possible inference that he did . It was reasonable for the
Commonwealth to further argue that this could have resulted in a fight
between Williams and Appellant about their relationship, where Appellant
ultimately became enraged and raped and killed Williams .
Appellant's contention that these are not reasonable inferences relies on
the false assumption that a reasonable inference can only derive from direct
evidence . Because no one testified that a fight between Appellant and Williams
actually took place, Appellant argues that the Commonwealth should not have
described such a fight in closing. However, just as a jury is free to convict a
defendant on circumstantial evidence alone, the prosecution may draw
reasonable inferences from circumstantial evidence alone . See Hodges v.
Commonwealth, 473 S .W.2d 811, 812 (Ky. 1971) ("It is well settled that a
conviction may be had upon circumstantial evidence."). In this case, there was
ample circumstantial evidence for the Commonwealth to draw an inference of a
fight between Williams and Appellant: that Williams had earlier suggested the
relationship was coming to an end ; that Appellant left Williams that night to
spend time with his ex-wife; that his ex-wife was wearing strong perfume ; that
Appellant was the first one to "find" Williams dead ; and that Williams's legs had
been bound and Appellant's semen found on her, a circumstance indicating
16
rape . Thus, there was no prosecutori.a.l misconduct in the Commonwealth's
description in closing argument of the fight leading up to the rape and murder .
D. Undue Delay
The rape and murder of Ray Williams took place in 1980 . Appellant was
first tried for the murder in 1981, but after a mistrial due to a hung jury, the
charges were dismissed without prejudice . It was not until 2007 that Appellant
was re-charged-this time for rape and murder . Appellant argues that the 26
year gap between the mistrial and reinstating the charges constitutes undue
delay.
It is first worth noting that any alleged undue delay in this case does not
implicate Appellant's right to a speedy trial . "Once charges are dismissed, the
speedy trial guarantee is no longer applicable because with no charges
outstanding, personal liberty is certainly not impaired to the same degree as it
is after arrest while charges are pending." Kirk v. Commonwealth, 6 S .W .3d
823, 826 (Ky . 1999) . "Nevertheless, unjustified and prejudicial preindictment
delay may constitute a violation of due process and require dismissal." Id.
However, "[p]rejudice alone will not suffice," id.; rather, "dismissal is required
only where there is both substantial prejudice and an intentional delay to gain
tactical advantage." Id.
Whether or not Appellant was prejudiced by this delay in prosecution, it
was justified and, therefore, did not violate due process. Retrial, after the long
delay, was very much justified in this case by the advance in science-namely,
DNA analysis- since the time of the crime and first trial . The Commonwealth
did not re-charge after the first trial because it had no new evidence . Thus, it
17
was quite possible that a second trial would share the same outcome as the
first-a hung jury. Only when DNA analysis was later developed, and
eventually performed on the semen found in this case, did the Commonwealth
obtain the evidence it needed to justify trying the case again . This evidence not
only confirmed that Appellant had had sexual relations with the victim, but
also demonstrated that no other person's semen was found on the victim after
the rape .
Such delay is not a violation of due process. On the contrary, it is a
commendable exercise in restraint by the prosecution to wait for sufficient
evidence to re-charge . "Penalizing prosecutors who defer action for these
reasons would subordinate the goal of `orderly expedition' to that of `mere
speed.' United States v. Lovasco, 431 U .S . 783, 795 (1977) ; see also id.
("Rather than deviating from elementary standards of `fair play and decency,' a
prosecutor abides by them if he refuses to seek indictments until he is
completely satisfied that he should prosecute and will be able promptly to
establish guilt beyond a reasonable doubt.") . Though no published opinion in
Kentucky has addressed developments in DNA analysis as a justification for
delaying indictment, in Walker v. Commonwealth, No. 2006-SC-000480-MR,
2007 WL 2404508 (Ky. Aug. 23, 2007) (unpublished opinion), this Court
established that such developments are in fact a legitimate justification .
While Appellant is correct that obtaining a tactical advantage is not a
justification for delaying prosecution, Kirk, 6 S .W.3d at 826, that is not what
occurred in this case. New evidence is not a tactical advantage . In Lovasco,
the U.S. Supreme Court held that "investigative delay is fundamentally unlike
18
delay undertaken by the Government solely `to gain tactical advantage over the
accused. . . ."' 431 U.S . at 795. The reason for this distinction is that
"investigative delay is not so one-sided"-both sides have an opportunity to
investigate . Id. While the wait for scientific advancement is not exactly
investigative delay-or is at least a much more passive form of itit is equally
distinguishable from delaying for a tactical advantage. Just as with
investigative delay, scientific advancement is not one-sided . The new DNA
evidence could just as easily have helped a suspect as have hurt him. If the
particular subject of DNA testing in this case-the sperm found on the victim
had belonged to someone other than Appellant, there would likely have been no
further prosecution .
Appellant also casts his constitutional critique of the second trial as a
double jeopardy concern . However, as even Appellant admits, it is wellrecognized that a mistrial by way of hung jury does not bar re-prosecution .
Nichols v. Commonwealth, 657 S .W.2d 932, 933 (Ky. 1983) . "The granting of a
mistrial because the jury is unable to agree is a classic example of when a
retrial can be had. . . ." Id. Thus, there are no double jeopardy concerns .
III. Conclusion
For the aforementioned reasons, Appellant's convictions in Todd Circuit
Court are affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Fred Greene
PO Box 490
301 West 3rd Street
Russellville, Kentucky 42276
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Christian Kenneth Ray Miller
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive, Suite 200
Frankfort, Kentucky 40601
,*uyrrmr Courf of ~ftrufurkV
2009-SC-000069-MR
NORMAN GRAHAM
APPELLANT
ON APPEAL FROM TODD CIRCUIT COURT
HONORABLE WILLIAM R . HARRIS, JUDGE
NO . 07-CR-00001
V
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
On the Court's own motion, the Opinion of the Court by Justice Noble
rendered Au
st 26, 2010 in the above styled case shall be modified by the
substitution of new page 2 of the Opinion as attached hereto. Said
modification does not affect the holding, and is, made only to reflect correction
of the spelling of `Stokley.'
Entered: September 10, 2010 .
P
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CHIEF JUSTIC~
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