387 F.3d 1244 (11th Cir. 2004), 01-14680, United States v. Frazier

Docket Nº:01-14680.
Citation:387 F.3d 1244
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Junior FRAZIER, Defendant-Appellant.
Case Date:October 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1244

387 F.3d 1244 (11th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard Junior FRAZIER, Defendant-Appellant.

No. 01-14680.

United States Court of Appeals, Eleventh Circuit

October 15, 2004

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Stephanie Kearns, Federal Public Defender, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Amy Levin Weil, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges [*].

MARCUS, Circuit Judge:

Richard Junior Frazier appeals his conviction for kidnapping. He claims that the district court abused its discretion by excluding certain expert testimony of a forensic investigator, while allowing the government to present expert evidence on the same issue. After thorough review of the record, we conclude that the district court's evidentiary rulings were neither an abuse of discretion, nor "manifestly erroneous." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (citation omitted). More generally, we reaffirm the basic principle that an appellate court must afford the district court's gatekeeping determinations "the deference that is the hallmark of abuse-of-discretion review." Id. at 143, 118 S.Ct. at 517. Accordingly, we affirm.

I.

A.

The defendant, Richard Junior Frazier, was charged on December 6, 2000, by a grand jury sitting in the Northern District of Georgia in a one-count indictment with kidnapping in violation of 18 U.S.C. § 1201(a) (1). 1 The indictment also alleged

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that, pursuant to 18 U.S.C. § 3559(c), the "three-strikes" statute, the defendant had multiple prior convictions for qualifying serious, violent felonies to mandate a life sentence. 2 He entered a plea of not guilty and vigorously contested the charges at trial.

The relevant facts in this sad case are these. At some time after eight o'clock on the evening of October 31, 2000, an eighteen-year-old student ("the victim") stopped at a Wal-Mart store in Cornelia, Georgia to check the prices of Halloween candy. According to the victim's account, she was abducted by the defendant after leaving the Wal-Mart. She walked to her car and unlocked the door, when she was confronted by the defendant, Frazier, who was carrying a knife in his right hand pointed at her. He asked the victim: "Will you take me where I want to go?" R7 at 149. Fearing for her life, the victim complied and at Frazier's demand sat in the driver's seat. Frazier entered the back seat of the vehicle, sat directly behind the victim, and directed her to drive out of the parking lot. 3

Frazier initially told the victim that he wanted to visit his son in White County, Georgia, but eventually directed her off the paved road and onto a dirt road leading to a secluded, wooded area. After they reached this deserted location, Frazier instructed the victim to turn the engine off, moved into the front passenger seat, positioned the knife in his right hand, and ordered the victim to remove her pants and underpants. She disrobed. The defendant then removed his own clothing and sexually assaulted her at knifepoint, raping her repeatedly and variously in a crime of unspeakable brutality, in the front of the vehicle and in the back seat of her car. According to the victim, the defendant apologized for not being able to ejaculate because he was drunk.

After the sexual assaults were completed, the defendant dressed, took control of the car, and drove north on U.S. Highway 441 toward North Carolina. Frazier stopped twice, first at a Citgo convenience store where he bought gasoline, and then at a Circle-K store where he bought cigarettes. At both stops, Frazier made the

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victim accompany him into the convenience stores, warning her not to do anything "stupid." 4 R7 at 162, 163.

In the meantime, the victim's fiancé and family members became alarmed over her absence. Her fiancé, Anthony Defoor, expected to meet her after she visited the Wal-Mart, and by eleven o'clock, had become very concerned. He began searching for her and contacted her parents. The victim's mother called 911 to report her missing, and her father, Larry Kimsey ("Kimsey"), drove off in search of his daughter. Kimsey spotted his daughter's vehicle, followed it for several miles, and pulled up alongside it, noticing that his daughter was in the front passenger seat and a stranger was driving the car. He attempted unsuccessfully to flag down his daughter's car by driving alongside the vehicle, flashing his brake lights, and rolling down his windows and motioning with his arm for the car to stop. Kimsey continued to chase the vehicle, mile after mile, at speeds up to 80 miles per hour. Indeed, when Kimsey pulled alongside his daughter's car, the defendant swerved and cut him off. Eventually, although he was unable to stop the car, Kimsey was able to attract the attention of a passing deputy sheriff by repeatedly flashing his brake lights.

At this point, the officer driving a marked police car made a u-turn and began chasing the two vehicles. The deputy activated his flashing blue lights in an attempt to stop the victim's car, but Frazier did not pull over. The deputy called for back-up and additional officers joined the chase, pursuing the victim's car with their lights and sirens activated. Still, Frazier did not stop; instead he accelerated the vehicle, leading the police on a chase at speeds of up to 100 miles per hour for many miles, passing stop signs, repeatedly crossing the center line, and running red lights without slowing or stopping. 5 Twice, when law enforcement officers tried to cut him off, Frazier tried to hit their cars. Frazier continued his flight at high speeds, crossing into North Carolina, and driving north on North Carolina Route 28. Driving at high speed on this twisting, winding road, Frazier frequently swerved out of the proper lane, until eventually he lost control of the vehicle and crashed into a power pole alongside Route 28. The officers radioed for emergency medical and fire authorities.

The police immediately removed both Frazier and the victim from the car. After being asked why the vehicle was fleeing the police, the victim replied that the defendant had kidnapped her from the Wal-Mart at knifepoint. When Frazier was searched immediately following his arrest, the officers discovered two knives on his person. One of the knives was found in his right hip pocket, locked in the open position with a partially serrated blade.

The victim was transported to a local hospital where, because she claimed to

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have been sexually assaulted, she was treated by a Sexual Assault Nurse Examiner. The nurse examined the victim and prepared a rape kit by removing loose hairs from the victim and from her clothing. She also swabbed for fluids. The nurse-examiner later testified that the victim's manner and demeanor were consistent with what she described as a post-traumatic stress demeanor, and said that the victim had suffered traumatic bruising to her cervix. 6 Later testing of the swab and hair evidence recovered from the examination failed to establish that any hair or fluid recovered from the victim's person or clothing matched Frazier's. Similarly, although various pieces of evidence, including seat upholstery, were removed from the victim's car, no hair or fluid evidence was recovered that matched the defendant's.

When the victim testified at trial, she gave a detailed account of these events that was consistent with those recounted by her father, and by three of the police involved in the pursuit of Frazier. On cross-examination, Frazier vigorously challenged the victim's account. Frazier elicited from the victim that at some point after the night of her abduction, she retraced the route she and Frazier had taken with law enforcement officers, and initially was unable to locate the dirt road on which the sexual assaults had taken place. Frazier's counsel questioned the victim regarding the sexual assaults, asking her to recount, in detail, nearly a dozen sexual acts that occurred in the front of the vehicle, as well as in the back seat. Frazier elicited the fact that the victim had not mentioned that she had been sexually assaulted to the first doctor, a male, who examined her at the hospital. The victim also conceded that she had lit a cigarette for the defendant while they were in the car together.

On the evening after his arrest Frazier was questioned, and, after receiving Miranda 7 warnings, he gave an account of the previous evening that differed dramatically from the victim's account. Frazier told an FBI agent interviewing him that he had been drinking beer all day, and "had a good buzz on" after consuming three twelve-packs. R7 at 211, 214. Frazier recounted that he was sitting on a bench outside the Wal-Mart, wearing a baseball hat that read "Official Booze Guzzling, Beer Chugging, Sud Sucking, Ass Kicking Party Cap," id. at 218, when he was approached by the victim, a complete stranger, who initiated a conversation with him and offered to give him a ride back to his residence.

After he accepted the offer, according to Frazier, they began to drive around; when Frazier mentioned an ex-girlfriend in Silva, North Carolina, whom he wanted to visit, the victim offered to drive him there and he accepted. The defendant also told the FBI that the victim asked him to drive the car, even though he had consumed a large amount of alcohol and had told her that he did not have a valid driver's...

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