Frederick v. State

• Decision Date: 21 November 2001
• Docket Number: No. D-1998-293.,D-1998-293.
• Citation: 37 P.3d 908,2001 OK CR 34
• Parties: Earl Alexander FREDERICK, Sr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

37 P.3d 908
2001 OK CR 34

Earl Alexander FREDERICK, Sr., Appellant,
v.
STATE of Oklahoma, Appellee

No. D-1998-293.

Court of Criminal Appeals of Oklahoma.

November 21, 2001.

Robert H. Macy, District Attorney, Oklahoma County, Sandy Elliott, Susan Caswell, Assistant District Attorneys, Oklahoma City, OK, Attorneys for the State.

Catherine Hammersten, Bert Richard, Assistant Public Defenders, Oklahoma County, Oklahoma City, OK, Attorneys for Defendant.

Robert A. Ravitz, Public Defender of Oklahoma County, Wendell B. Sutton, Assistant Public Defender, Oklahoma City, OK, Attorneys for Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, William L. Humes, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee.

37 P.3d 919

OPINION

LILE, Judge:

¶ 1 In 1992, Earl Alexander Frederick, Sr., Appellant, was tried by jury in the District Court of Oklahoma County, Case No. CF-90-734, was convicted of Murder in the First Degree, and was sentenced to death. On August 30, 1995, that conviction was reversed and remanded for a new trial. See Frederick v. State, 1995 OK CR 44, ¶ 31, 902 P.2d 1092, 1099.

¶ 2 The Honorable Virgil C. Black, District Judge, conducted the retrial before a jury from February 23 through March 6, 1998. Appellant was again found guilty of Murder in the First Degree, 21 O.S.Supp.1989, § 701.7(A) (Malice Aforethought), and punishment was again set at death. Two statutory aggravating circumstances were found to exist beyond a reasonable doubt:

1. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and

2. The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

¶ 3 The court imposed the death sentence on March 13, 1998,¹ in accordance with the jury verdict. Frederick is before this Court on direct appeal from this second conviction and sentence.

FACTS

¶ 4 Brad Beck was murdered by Frederick on November 11, 1989, in Spencer, Oklahoma. Mr. Beck was partially paralyzed and required a cane for walking. Mr. Beck was house-sitting in Spencer for his cousin, Terri Smith, who was visiting her mother in New Mexico. Frederick, who used many aliases, had been staying with Beck from approximately November 7 through November 11, 1989, going by the name "Jeff."

¶ 5 Ms. Smith usually called Beck daily. She had expressed concern that this stranger, Jeff, whom she had never met, had moved into her house while she was gone. When she talked to Beck, for the last time, on

37 P.3d 920

Saturday morning, November 11, he told her he would ask Jeff to leave

¶ 6 Frederick brutally clubbed Beck to death that day and drove his body to a nearby field. He ransacked the house, pulling out drawers looking for valuables. Frederick then drove Beck's pickup some 300 miles to Dumas, Texas, north of Amarillo, where he listed Beck's pickup on a motel registration and used another alias, "Larry Davis." He took with him numerous items stolen from Beck, Terri Smith, and Michael Don Smith.

¶ 7 Three days later, Frederick bludgeoned and shot to death an acquaintance, Mr. Shirley Fox (a 76-year-old disabled man), in Texline, Texas. Texline is on the west edge of the Texas panhandle, nine miles from Clayton, New Mexico, where Frederick had lived for the preceding four years. Frederick parked Beck's pickup in a row of old cars at Fox's house after removing the tag.² He transferred the property he had stolen from Beck and the Smiths into Mr. Fox's blue 1975 Chevrolet Impala. He ransacked Fox's house, pulling out drawers as he had in Oklahoma, and took two shotguns (including the one he had just used to shoot Fox), a .22 rifle, coin collections, jewelry, and other property.

¶ 8 That evening, Frederick stayed at a motel in Dalhart, Texas, about midway between Texline and Dumas, using another alias, "R.J. Collier," and listed Mr. Fox's Chevy on the motel registration. The next day he drove to Amarillo in the stolen car with the stolen property.

¶ 9 Mr. Fox's body was found in his home November 16. He had been beaten with a claw hammer that was found nearby. One of his ears had been mangled and partially torn off by the force of a blow to his head. One of his fingers was almost severed. He had also been shot with his own shotgun at close range. Frederick later told officers he had sold the guns and coin sets in Amarillo for $200. When the shotgun was recovered in Amarillo, it still had Mr. Fox's dried, splattered blood on it. When Beck's pickup was found abandoned at Fox's house November 16, blood smears were found inside the cab that were the same as Beck's blood type. The jury heard testimony in the first stage of the trial that Mr. Fox's car was stolen, but they were not told until the second stage that he was murdered.

¶ 10 Beck's mother reported him missing on November 17, 1989. An officer went to Terri Smith's house to look for him, but he was not found. On November 25, officers with the Sheriff's Office crime lab were dispatched to the Smith residence. Captain James Rouse testified that drawers were open and that there was dried blood on the floor furnace grating and on the inside of the front door facing.

¶ 11 Late on November 19, police in Amarillo, Texas, spotted a woman driving Mr. Fox's car. Patrolman Ward pulled her over, and she told him she had borrowed the car from a man she had met in a bar a couple of days earlier named "R.J." She gave the police a description of R.J. and told them he was inside the Unique Club. They found a person at that club who matched the detailed description she had given, and he was arrested. "R.J." turned out to be Frederick. He gave the officers his correct name, Earl Frederick, Sr.

¶ 12 When they drove past Fox's car, Frederick initiated a conversation by asking "if the girls that he had loaned his vehicle to had gotten busted for speeding or something?" Officer Oakley then asked Frederick if that was his car, and "He said that it was." Frederick then volunteered that "he had bought the car a few nights earlier." After Frederick was advised of his rights at the police station, he further stated he had bought the car for $300 from four persons in Cactus, Texas. He gave consent to search his motel room, and the police found numerous items stolen from Smith's house including jewelry, Beck's war medals, and a birth

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certificate belonging to Terri's brother, Michael Don Smith

¶ 13 The Dallam County District Attorney Investigator, Tim Bell, interviewed Frederick on November 20. He said he had lived in the area near Texline at Clayton, New Mexico. He had married under the name R.J. Forster³ and had lived there for four years with his wife Nadine Forster. He admitted that he knew Beck, but at first denied that he had killed him. He told Bell that he and Beck had planned to drive Beck's pickup to New Mexico. He said they had changed their plans, and that Beck told him to go on in the pickup, and that he, Beck, was just going to hitchhike to Mexico and "drop off the face of the earth." Frederick admitted he had driven Beck's pickup from Oklahoma City to Dumas, Texline, and Clayton, but claimed Beck had given him the truck. He repeatedly said, if you want to talk to Beck, you will have to go to old Mexico.

¶ 14 Frederick signed a statement in which he said he drove Beck's pickup from Clayton to a bar in Texline on November 14, where he met a man named Paul Encenia. He denied that he personally had killed Fox, but claimed he was present while Encenia had killed Fox with a hammer. He admitted that he had stolen Fox's car, guns, and coins.

¶ 15 The next day, November 21, in Dallam County, Frederick was again advised of his rights and again waived those rights. Paul Encenia had been brought in for questioning based on Frederick's accusation that he killed Mr. Fox. When Frederick and Investigator Bell passed by Encenia in the jail, Encenia confronted Frederick and said, "Hey man, why are you telling all those lies on me. I haven't done nothing." Frederick did not respond to the accusation at that time.

¶ 16 Later that day, Frederick had the jailer notify Officer Bell to return to the jail. This time he told Bell, "My name is Larry Davis, and I need to talk to you quick, Jeff doesn't let me out very long." He added: "I'm an ex-policeman, and I'm the only one that can tell the truth."

¶ 17 Bell further testified:

"He [Frederick] told me Earl had lied to me when I had talked to him earlier about the old man. He said Paul Encenia had nothing to do with the old man. In fact he [Paul] wasn't even there and Jeff was the one that did it all and Jeff was the one that killed the old man.

"He also told me Jeff was the one who made Larry and Earl and R.J. do things they didn't want to do. And then he went on to tell me about Jeff had killed Bradford Beck and that the body had been dumped in an open field near Spencer, Oklahoma. And I asked him, well, did you bury the body, did you cover the body, or what? And he said, `[No], it's in an open field near Spencer, Oklahoma.'"

¶ 18 A week later on November 28, Frederick met his appointed Texas lawyer, David Green. He displayed his same repertoire of characters that he had displayed for Officer Bell. Larry Davis however, was not portrayed as the same ex-police officer, the role he had played for Officer Bell, but was now portrayed as a crying 13-year-old boy, who was afraid of the situation and didn't know where he was. Frederick never displayed these personalities to Green again, and for the next year in the Dallam County Jail, he was just "Earl" to his lawyer.

¶ 19 Deputy Scott testified that Frederick said he used the different aliases — Larry Davis, R.J. Forster, and Collier — "in order to avoid confrontation from the law."

¶ 20 Two months later, Beck's partially decomposed and mummified corpse was found still lying face up, uncovered, and unburied in an open field in Spencer, Oklahoma,...