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Graham’s motion for new trial denied

Published 7:38pm Monday, November 11, 2013

A Red Bay man convicted of manslaughter in April will not be granted a new trail, according to a recent court ruling.

Franklin County Circuit Judge Terry Dempsey denied a motion for new trial last week for Hershel Dale Graham, 51, who was convicted of manslaughter in the Nov. 3, 2011, shooting death of David Andrasik, of Red Bay.

Dempsey heard arguments from Graham’s defense team at a hearing on Oct. 30 where defense attorney Tom Freeland said the motion for new trial was filed on the grounds that the state did not meet its obligation to negate self defense in this case.

Freeland also pointed out what the defense believed to be potentially misleading statements made during closing arguments in regards to the defense’s surprise witness, Matthew Cole, who came forward during the trial and admitted he had been at the scene and witnessed part of the incident.

“[In closing arguments] the state suggested that Matthew Cole came forward at the last minute, which suggests that his testimony was recently fabricated,” Freeland said.

Franklin County District Attorney Joey Rushing, who made the statements in question, said he believed it was important for the jury to know Cole had not come forward as a witness until the trial was almost over.

“We thought it was important that the jury know this was a witness who came forward after arguments were closed,” Rushing said.

“The case had been in the papers for a week and talked about in Red Bay for over a year, but he didn’t want to be involved. The things said in closing arguments go to show a possible bias the witness may have had toward the defendant, not that the testimony itself was recently fabricated.”

After listening to both sides, Dempsey said he would consider the arguments presented before making a ruling.

He ruled on Nov. 5 that the motion for new trial had been denied.

“I think it was clear from the verdict that the evidence was not sufficient to prove this shooting was an act of self defense,” Rushing said.

“A lot of times if an incident like this takes place on a person’s property, everyone automatically assumes the person should not be held responsible because of self defense, but if you look at all the facts in this case and you look at the way Alabama law defines the justified use of deadly physical force, you will see that deadly physical force was not warranted in this case.”

Graham’s conviction stemmed from an altercation that took place on Graham’s property between Andrasik, Graham and Graham’s 17-year-old son, Elijah Graham.

Witness testimony revealed that Graham fired the fatal shot that struck Andrasik in the chest.

Graham maintained throughout the trial that the shot was fired in self defense and that the nature of the argument between himself, his son and Andrasik caused him to fear for his life.

However, the prosecution asserted Graham had multiple chances to settle the situation without resorting to deadly force.

Defense attorney Ken Guin said at the conclusion of the trial that the defense believed there were grounds to appeal the case and they would begin the process as soon as possible.

Rushing said the motion for a new trial was the first step in the appeal process.

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