Frazier v. State

• Citation: 362 S.E.2d 351,257 Ga. 690
• Decision Date: 01 December 1987
• Docket Number: No. 44619,44619
• Parties: FRAZIER v. The STATE.
• Court: Supreme Court of Georgia

Page 351

362 S.E.2d 351

257 Ga. 690

FRAZIER v. The STATE.

No. 44619.

Supreme Court of Georgia.

Dec. 1, 1987.

Reconsideration Denied Dec. 16, 1987.

Ronald C. Goulart, Fort Oglethorpe, William David Hentz, Chickamauga, for Leonard Junior Frazier.

David L. Lomenick, Jr., Dist. Atty., LaFayette, James D. Franklin, Susan R. Sarratt, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., for the State.

SMITH, Justice.

The appellant, Leonard Junior Frazier, was convicted by a jury in Walker County on two counts of murder and one count of armed robbery and sentenced to death. He appeals. We affirm. ¹

1. Frazier met with his nephew Jimmy Asher on the evening of January 8, 1986. They drank several beers together, and Frazier stated that he knew where they could get a lot of money.

The two of them drove to the home of Warren and Eva Peppers, an elderly couple for whom Frazier had previously worked. Asher hid a baseball bat in his trousers, and they were invited into the Peppers' home.

After discussing possible work for a few minutes, Frazier (according to Asher) signalled to Asher that he wanted the baseball bat, and then proceeded to beat the Peppers to death. (According to Frazier, it was Asher who beat the couple to death.) The two defendants took from the residence two guns and a wallet containing two hundred dollars.

The Peppers' neighbors saw Frazier's automobile parked at the Peppers' residence at approximately 7:00 p.m. When the neighbors returned from Wednesday evening church service at 8:30, they visited the Peppers and discovered them lying on the floor, covered with blood.

Frazier sold one of the guns that evening. Law enforcement officers recovered it the next day.

Frazier and Asher were arrested. Frazier's room was searched and officers seized blood-stained clothing, which Frazier later admitted he had worn on the evening of the murders.

The conviction is supported by the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends that his challenges to the arrays of the grand and traverse juries should have been granted. As he points out, OCGA § 15-12-40(a)(1) directs the board of jury commissioners in each county to compile a jury list "of intelligent and upright citizens of the county to serve as trial jurors." In addition, OCGA § 15-12-40(a)(2) directs the board of jury commissioners to compile a grand jury list "of the most experienced, intelligent, and upright citizens of the county to serve as grand jurors."

Appellant contends that, inasmuch as the commissioners in Walker County used only the criteria of age, race and sex in selecting potential jurors for inclusion on the lists, the commissioners failed to ensure that persons on the traverse jury list were "intelligent and upright" and that persons on the grand jury list were the "most experienced intelligent and upright citizens of the community."

As the Code requires, the potential jurors were selected primarily from the voter registration list. Id. Appellant has not shown that the persons so selected were lacking in intelligence, experience, or uprightness. In any event, it has been held that so long as a jury list meets equal-protection and fair-cross-section standards respecting the inclusion of cognizable groups, "the statutory procedures for creating the list are merely directory," and do not create a basis for sustaining challenges to the array. Dillard v. State, 177 Ga.App. 805, 807, 341 S.E.2d 310 (1986).

Appellant further contends that blacks and other minorities have been discriminated against in the selection of grand jury foremen in Walker County. Inasmuch as appellant is a white male, he lacks standing to assert such a claim. Castaneda v. Partida, 430 U.S. 482, 494-95, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). See also, Ingram v. State, 253 Ga. 622 (1 c), 323 S.E.2d 801 (1984).

Regarding appellant's next claim, we do not find that the manner in which excusals and deferrals were granted in this case has resulted in the substantial underrepresentation of cognizable groups on the jury venires actually present for trial. Minor deviations from the statutory requirements respecting juror excusals do not invalidate the traverse jury array. Ingram v. State, supra, 629-30(1 e), 323 S.E.2d 801.

Finally, that one of the six jury commissioners failed to participate in the compilation of the grand jury list because she underwent surgery is not a circumstance that would "vitiate" the grand jury array. Pope v. State, 256 Ga. 195, 197 (1 c), 345 S.E.2d 831 (1986).

3. The trial court did not err by denying appellant's motion to declare unconstitutional the Georgia Unified Appeal Procedure and various Georgia statutes relating to the imposition of the death penalty, or by denying appellant's motion to bar the imposition of the death penalty in this case.

4. It was not error to try the issues of guilt and sentence before the same jury (in bifurcated proceedings), or to death-qualify prospective jurors during voir dire. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

5. Appellant demurred to the indictment on the ground that it did not specify whether the element of malice was expressed or implied. The trial court properly overruled the demurrer. On an indictment for malice murder, "the State may introduce any evidence which is relevant and material upon the issue of malice, either express ... or implied ...; and it is unnecessary for the indictment to allege more specifically the facts which will be relied upon to establish malice." Perry v. State, 78 Ga.App. 273, 277, 50 S.E.2d 709 (1948).

6. The trial court did not err by denying appellant's motion for recordation of the entire grand jury proceedings, plea in abatement, motion to sever (that is, to present separate indictments charging this defendant with murder to separate grand juries), request for an order instructing the state not to present to the grand jury evidence of similar offenses, and motion to have the trial court question each grand juror about his or her exposure to pre-trial publicity. See, e.g., Felker v. State, 252 Ga. 351(2 a), 314 S.E.2d 621 (1984); OCGA §§ 15-12-82; 15-12-83.

7. Prior to trial, appellant filed a plea of misnomer, alleging that he had never been known as Leonard Frazier, that such was not his true name nor the name by which he was generally called, and that his true name was Leonard Frashier (rhyming with Thrasher). See OCGA § 17-7-112.

At the hearing on this motion the state offered in evidence 18 documents signed by appellant over a six-year period as "Frazier." (In addition, five documents admitted at trial and three in the record, including his financial affidavit, were signed by appellant as "Frazier.") A police officer testified that he had known appellant for 14 years as Frazier, not Frashier.

The trial court considered this evidence, and, noting that appellant's name had been mentioned numerous times in previous hearings in the case and that his name had never been pronounced "Frashier to rhyme with Thrasher," denied the plea of misnomer.

A defendant may be indicted properly "under a name by which he is generally known and called, whether this be his true name or not." Roland v. State, 127 Ga. 401, 402, 56 S.E. 412 (1906). If Frazier is not appellant's true name, it clearly is one by which he is "generally known and called." Ibid. We find no error in the denial of the plea.

8. Appellant's co-defendant, Jimmy Asher, pled guilty prior to appellant's trial. In return for the state's promise not to seek a death sentence against him, Asher agreed to testify at appellant's trial, and to provide the state with the investigative file compiled by Asher's court-funded private investigator.

Appellant contends that providing the state with this investigative file violated his attorney-client privilege. See OCGA § 24-9-21(2). However, Asher's investigative file contained no confidential communications between appellant and appellant's attorney, nor any of the latter's work product. See C.L.R.R. v. Dougherty, 111 Ga.App. 144, 141 S.E.2d 112 (1965). Hence, none of the material disclosed to the state is encompassed by appellant's attorney-client privilege, and appellant may not invoke another's privilege, even if the other is his co-defendant.

9. Attorney Ronald Silvey originally was one of two attorneys appointed to represent co-defendant Asher, while attorney Ken Poston was one of two attorneys appointed to represent appellant. Silvey represented Asher for two weeks in January 1986 and then was relieved of the appointment when Silvey's law firm hired David Dunn who, until then, had been employed as an assistant district attorney. Poston represented appellant for almost a month, and was removed from the case in February 1986.

The case was tried in January 1987. Subsequently, prior to the court's disposition of the motion for new trial, Poston was hired, and Dunn was rehired, by the district attorney's office.

Appellant filed pre- and post-trial motions to disqualify the district attorney and his staff from prosecuting this case, on conflict of interest grounds. He contends the trial court erred by overruling these motions.

There is no issue here about the propriety of any involvement by Poston or Dunn at the trial or in the post-conviction proceedings in this case. It would clearly be improper for an attorney to change roles from the prosecution to the defense (and vice versa) in the same case. Lane v. State, 238 Ga. 407(4), 233 S.E.2d 375 (1977). Quite properly, neither Dunn nor his firm participated in the defense of this case after Dunn left the district attorney's office in January 1986. Nor has Dunn or Poston participated, directly or indirectly, in the prosecution of this case since joining the office of the district attorney after the case was tried.

Appellant argues, however, that because Dunn and the district attorney reached an agreement prior to trial that...