Opening statements made in Graham’s murder trialPublished 6:04am Wednesday, April 3, 2013
Jurors heard opening statements and witness testimonies Tuesday in the trial of a Red Bay man accused of murder.
The trial of Herschel Dale Graham, 51, 806A 10th St. NE, Red Bay, officially got underway Tuesday morning after a jury was struck on Monday.
Graham is accused of shooting and killing 42-year-old David Andrasik, of Franklin 11 North in Red Bay, on Nov. 3, 2011, outside Graham’s residence in Red Bay.
Graham was not immediately charged with murder claiming he acted in self defense, but we was officially indicted on the murder charge by the January 2012 grand jury.
Franklin County District Attorney Joey Rushing addressed the jurors during opening statements to describe what the scope of the trial would cover.
“This case is not about the elements of murder – it’s about self defense,” Rushing said.
“Everyone will agree Herschel Graham shot and killed David Andrasik. What’s in dispute is whether Mr. Graham killed David Andrasik out of self defense.”
Rushing went over the Alabama statute outlining what types of self-defense situations call for the use of physical force and deadly physical force.
Rushing said he believed the circumstances surrounding this case did not warrant Graham’s use of deadly physical force to remove Andrasik from his property.
“The use of deadly physical force is justified in self defense if the person reasonably believes another person is about to use deadly physical force or is about to commit a crime such as kidnapping, robbery, burglary or rape,” Rushing said.
He added that while Andrasik was very intoxicated at the time the incident occurred and was belligerent, he did not feel the evidence showed it was enough to justify the deadly physical force Graham displayed by shooting and killing Andrasik.
According to Rushing, the incident began about 5 p.m. on Nov. 3, 2011, when Andrasik was driving to his home on a route that took him past Graham’s residence.
Rushing said when he was near Graham’s property, a dog reportedly ran out into the road and Andrasik had to slam on his brakes to avoid hitting the dog.
Rushing said Andrasik exited his vehicle and came onto the Grahams’ property where he first encountered Graham’s 17-year-old son, Elijah Graham, and his girlfriend at the time, Cassidy Borden, who were sitting in Elijahs Graham’s truck because they were on their way out.
Rushing said at this point, Elijah Graham allegedly bumped or hit Andrasik with his vehicle and caused Andrasik to become more agitated than he already was.
Rushing said Elijah Graham drove his car around to the back of the house and Andrasik left the Grahams’ property to go to a neighboring house belonging to Donald and Sue Self.
“They noticed Mr. Andrasik was very drunk, almost to the point of being comical, because he was staggering around and slurring his words,” Rushing said.
“But they were so non-threatened by him that they let him into their home.”
Rushing said once inside the Selfs’ home, Andrasik kept stating “I want help” but never said what he needed help for or what he wanted the Selfs to do.
He left the Selfs’ house and went back to his car, which was still parked in the middle of the street with the driver’s side door open.
Rushing said this is when Elijah Graham came back outside with his father, Herschel Graham, and the argument began again.
“At this time, Holly Lewey, a Red Bay teacher, pulled up behind Mr. Andrasik’s vehicle, which was blocking the road,” Rushing said.
“She observed the argument and the back and forth screaming and yelling so she called the police herself. This was the first time anyone had called the police.”
Rushing said from this point forward there was a play-by-play of events because the 911 dispatcher kept Lewey on the phone.
“She said she saw the young guy take off his shirt like he wanted to fight,” he said.
“At one point, Mr. Andrasik attempted to enter his car and had one foot in the door but was called back out of his car by Elijah. And there was a lot of stuff in his car he could have taken with him if he had wanted to do some damage but he just walked over himself.”
Rushing said this was the point when Herschel Graham allegedly got involved in the altercation.
“Mr. Graham was telling David Andrasik to get out of there but he was also cussing him,” he said.
“Then he went out of view behind the house and when he came back out, according to the 911 tape, it happened just like that. No one saw a gun. He shot him that quick.
“Ms. Lewey never saw the first shove, push or touching until the very end when [Andrasik] was in [Graham’s] face and he just took matters into his own hands and shot him.”
Rushing said witnesses would testify that everyone just left Andrasik to die and went back around to the front of the house. Andrasik was transported to Red Bay Hospital but died at 6 p.m. from the injuries he sustained.
“What we have here is not a situation of self defense but one of anger,” Rushing said. “Mr. Graham decided to take matters into his own hands and be the judge, jury and executioner of David Andrasik.”
Tupelo attorney William Wheeler, Jr., one of Graham’s defense attorneys, said the events weren’t as simple as Rushing played them out to be and that Andrasik made threats toward the Grahams.
“‘I will see you in hell,’” Wheeler quoted.
“Those were the very first words David Andrasik said to Herschel Graham. Then David Andrasik launched into a physical attack against my client.”
Wheeler said the testimony of those closest to the scene, including Elijah Graham, Cassidy Borden, neighbor Glen Duncan, George Graham and Herschel Graham has been consistent since the incident occurred that Andrasik was hostile and threatening.
“The Selfs were 60 yards away and Holly Lewey was down a hill, in a car, behind the wheel, talking on a cell phone to police and arrived after the incident starts,” Wheeler said.
“The witnesses that were closest to the scene are going to be very consistent in what they saw happen.”
Wheeler said when Andrasik first exited his vehicle and encountered Elijah Graham and Cassidy Borden, he took his fists and began beating on the truck.
“Cassidy Borden knew David Andrasik and knew he was a black belt in karate,” Wheeler said. “She was scared and called her father, Terry Borden, to tell him that David Andrasik was there.
“He beat on the hood of the car and said ‘Get out, I’m going to whip you’ and then hit the window so hard Elijah thought it would break, so Elijah revved his engine to scare him and get him to go away.”
Wheeler said after Elijah Graham drove the truck behind the house to park it, he went inside to get his father.
“He told him to come outside because there was a crazy man out there,” Wheeler said. “George Graham, Herschel Graham’s father, also came outside and saw David Andrasik coming up the driveway on their property screaming and cussing. Then Elijah sees Andrasik threaten his father and threaten his grandfather.”
Wheeler said at this point, Herschel Graham asked Andrasik several times to leave his property and leave his family alone.
“David Andrasik then comes up to Herschel Graham shouting and shoves him saying, ‘Come on, hit me.’ Then Cassidy Borden will testify that David Andrasik kicked off his shoes like a trained karate fighter would who was ready to fight.”
Wheeler said Graham has arthritis that has caused him to gain weight over the years and he is now on disability. He said Graham explained to Andrasik that he was handicapped and told him to leave him alone.
“He then pulled the gun from his pocket and shows him the gun in his palm,” Wheeler said. “And the testimony of all those people close to the scene will be that David Andrasik laughed and said ‘What are you going to do? Shoot me?’ and shoves Mr. Graham who pulled the trigger.
“We’re not contesting the fact that Herschel Graham shot and killed David Andrasik. The only issue is was Mr. Graham justified in protecting himself, his family and his property, and I believe the evidence will show he was in fact justified.”
At press time, jurors had heard witness testimony from Andrasik’s former mother-in-law, Rosemary Gahagan, Red Bay Police Lt. Scottie Belue, who was the first officer on the scene, and Red Bay Police Inv. Rodney Belue.
Witness testimony in the trial is expected to continue through Thursday.