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State v. Graham5/8/1998
ANDERSON COUNTY
Hon. James B. Scott, Jr., Judge (Voluntary manslaughter)
REVERSED AND REMANDED
Indicted for first degree murder, the defendant, Willie D. Graham, was convicted of voluntary manslaughter in the death of his brother-in-law, Ray Anthony Shervington. The trial court imposed a Range I sentence of six years.
In this appeal of right, the defendant presents the following issues for our review:
(I) whether the evidence is sufficient to sustain the conviction;
(II) whether the trial court erred by allowing the state to use peremptory challenges based on gender;
(III) whether the trial court erred by refusing to instruct the jury on the lesser included offenses of reckless homicide and criminally negligent homicide;
(IV) whether the trial court erred by allowing the state to impeach the defendant with prior convictions for selling marijuana; and
(V) whether the trial court erred in sentencing and in denying probation.
Because the trial court failed to charge each of the lesser offenses, we must reverse the judgment of the trial court and remand the cause for a new trial.
Ann Shervington, the defendant's sister, is the widow of the victim. The Shervingtons, who were married in 1983, have two daughters. Tamisha was twelve years old at the time of trial and Keisha was eight. Elizabeth Graham, the mother of the defendant and Ann Shervington, is affected with Alzheimer's disease and resides only a few houses away from the Shervingtons. At approximately 10:00 A.M. on Sunday, July 30, 1995, Ann Shervington, Paul "Bud" Byrum, Tommy Littlejohn, the victim and the defendant had gathered in the Graham backyard. They socialized and drank beer for much of the morning and afternoon. Ms. Graham spent the day inside the house.
The Shervingtons, who had each consumed about three quarts of beer over the course of the day, left about 5:30 P.M. to purchase more beer. While unaware of the amount of alcohol ingested by the defendant, Ms. Shervington described the victim as "pretty high" because he had consumed a lot of alcohol the previous night. She did not recall unpleasantness between the victim and the defendant or Ms. Graham. While conceding that she had argued with the victim, she revealed that that was not unusual.
When Jerry Weaver arrived, at about 9:00 P.M., Ms. Shervington recalled that the defendant and the victim began to argue. Both of the men entered the back door of the house. Ms. Shervington followed, saw the victim on the front porch with his hands outstretched toward the defendant, and then heard the defendant say, "Go on, man. Go on, man." She testified that the two men stood chest to chest. From fifteen to twenty feet away, Ms. Shervington saw the defendant draw a knife from the pocket of his shorts, open the blade beside his leg, raise the knife, and strike the victim. She ran toward the victim, who was not wearing a shirt, and saw a bloody wound on his left side and also a wound on the right side of his chest. Ms. Shervington ran to the house of her sister, Mary Graham, who lived next door and then to Joyce Dye's house to call for help. Her sister attempted to stop the bleeding. The ambulance arrived at about 10:00 P.M. When Ms. Shervington returned from the hospital at approximately 1:30 A.M., she went to the store with Littlejohn. Upon their return to her residence, police were searching for the weapon used by the defendant. Byrum helped them locate the knife.
Ms. Shervington testified that the knife was found in her front flowerbed at about 2:00 A.M. Littlejohn, Byrum, Weaver, and Willis were present at the time
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