Manslaughter conviction upheld
The conviction of a Franklin County man who stood trial for manslaughter in 2013 was upheld by the Alabama Court of Criminal Appeals this past week, officials said.
Hershel Dale Graham, 51, of Red Bay, was convicted of manslaughter in the Nov. 3, 2011, shooting death of David Andrasik, 41, Franklin 11 North, Red Bay.
Franklin County District Attorney Joey Rushing said he received word on Friday that the conviction was officially upheld by the Alabama Criminal Court of Appeals.
Rushing said this is the first step in the appeals process and one that he considered crucial.
“If there was any plain error made during the trial that could cause the case to be retried or the verdict to be overturned, the Court of Criminal Appeals would be the ones to find the error,” Rushing said.
“Our office is very pleased that a different set of judges agreed with the verdict and found the evidence presented during the trial was sufficient to uphold the conviction for manslaughter.”
Rushing said Graham’s defense attorneys appealed the case based on three issues.
“One issue was the self defense argument and they maintained the incident should have been considered one of self defense. However, the Court of Criminal Appeals ruled agreed this was not a case of self defense and the evidence supported the crime of manslaughter, which validated the jury’s verdict.”
Rushing said Graham’s defense also brought up two issues concerning evidence they believe should have been excluded and some evidence they believe was withheld.
“The court agreed with the trial court on all three of these issues, so we were very pleased with that,” he said.
The incident in question was one that occurred on Nov. 3, 2011 on Graham’s property in Red Bay.
Graham’s then-17-year-old son, Elijah Graham, testified Andrasik had confronted him and his girlfriend in the driveway of their residence about two dogs who had run in front of his vehicle while he was traveling past the Grahams’ home on the evening of Nov. 3, 2011.
Elijah Graham stated the argument escalated to the point where Andrasik was yelling, cussing and beating on the hood of Elijah Graham’s truck.
He said he left the driveway and drove to the back of the house to get his father, Hershel Graham, who came outside with his son and his father, George Graham.
Defense witnesses testified during the trial that Graham had tried to settle down the situation between Andrasik, who was highly intoxicated at the time, and his teenage son, and these witnesses also maintained Andrasik was acting irrationally and had actually verbally threatened and physically shoved Hershel Graham several times before the shooting occurred.
Elijah Graham also testified that Hershel Graham asked Andrasik to leave their property and actually showed him the gun in his hand before the shot was fired.
During closing arguments of the trial on April 8, 2013, defense attorney Ken Guin said Graham was only acting in self-defense when he fired the fatal shot that struck Andrasik in the chest with a .22 caliber pistol.
“Hershel Graham absolutely has a right to protect himself and his family,” Guin said.
“[The self defense] law was written for situations like this.” However, state’s witnesses said the shooting had taken place out of nowhere and there had been no indication the altercation had risen to that point.
Holly Lewey, a teacher at Red Bay School who was the only person at the scene to call 911, witnessed the incident from her car when she was unable to get around Andrasik’s vehicle, which was parked in the middle of the road with the driver’s side door ajar.
Lewey testified that Hershel Graham left the scene for a short period of time before coming back and firing the fatal shot.
“There was no indication that was coming,” Lewey testified. “I never saw the gun.”
Donald Self, the Grahams’ neighbor who witnessed the incident with his wife, Sue, from their front porch, also said he noticed Hershel Graham go out of sight behind the house for a short time.
“When he came back, I saw Hershel’s arm go up and heard a pop and saw [Andrasik] fall like a rock,” Self testified.
After the conviction on April 9, 2013, Graham received a 14-year split sentence with two years to serve in prison and the balance being spent on supervised probation.
Rushing said the Court of Criminal Appeals was the first step in the appeals process. He said Graham’s next option would be to appeal his case to the Alabama Supreme Court if he chose to continue to appeal.
