Ex parte Frazier

• Citation: 562 So.2d 560
• Parties: Ex parte Richard FRAZIER. (Re Richard Frazier v. State of Alabama). 88-778.
• Decision Date: 17 November 1989
• Court: Supreme Court of Alabama

Page 560

562 So.2d 560

Ex parte Richard FRAZIER (Re Richard Frazier v. State of Alabama).

88-778.

Supreme Court of Alabama.

Nov. 17, 1989.

Rehearing Denied Jan. 12, 1990.

James H. Lackey and Richard E. Shields, Mobile, for petitioner.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.

HOUSTON, Justice.

The trial court sentenced Richard Frazier to death by electrocution after a jury had convicted him of three counts of capital murder and had recommended that he "be punished by life imprisonment without parole." The Court of Criminal Appeals affirmed the conviction and the sentence. See Frazier v. State, 562 So.2d 543 (Ala.Crim.App.1989). We granted Frazier's petition for a writ of certiorari, pursuant to Rule 39(c), A.R.App.P. We reverse and remand.

Frazier was found guilty of unlawfully, intentionally, and with malice aforethought killing Jesse and Irene Doughty by shooting them with a gun; of feloniously taking approximately $7,000, the property of Mr. Doughty, against his will and by violence to his person, and during the robbery unlawfully, intentionally, and with malice aforethought killing Mr. Doughty by shooting him with a gun; and of unlawfully, intentionally, and with malice aforethought killing Mr. Doughty pursuant to a contract for hire. The robbery and the murders took place in January 1977; Frazier was not indicted for these offenses until November 1985, almost nine years later. The transcript and the briefs reveal no dispute as to the nature of these killings. This was, indeed, murder most foul. The dispute is whether Frazier is the murderer.

The jury found Frazier to be guilty as charged, based upon what the Court of Criminal Appeals described as "testimony of four witnesses whose credibility was highly questionable." There was certainly no lack of charity in this description. One witness who testified against Frazier was serving a life sentence after having been convicted of 15 felonies. Another witness against Frazier had been convicted of 13 burglaries and one misdemeanor. Another witness, Frazier's former common law wife, who had been convicted of forgery three times and of possession of illegal drugs once, made three inconsistent statements about the events that occurred on the night the Doughtys were killed, and she admitted that she was high on heroin that night. These were three of the four witnesses who connected Frazier with the robbery and these murders. During oral argument before this Court, Frazier's attorney appropriately remarked that these three witnesses were hardly "the prom queen, the Archbishop, or the Mayor of Mobile." The credibility of these witnesses was, however, for the jury, who knew of their convictions, the drug problem, and the prior inconsistent statements.

The problem that faces this Court concerns the testimony of the fourth witness, Dickie King, a convicted felon who appeared on behalf of the State at Frazier's trial. Although King's felony conviction reflected upon his credibility as a witness and, thus, was simply a matter to be considered by the jury, King admitted after Frazier's trial that he had perjured himself; and "therein lies the rub." After Frazier was convicted, Lee Jackson, the man who had allegedly hired Frazier to murder Mr. Doughty, was tried. Dickie King was also a witness for the State in the Jackson trial. After defense counsel had begun his cross-examination of King and the court had recessed for the day, the district attorney called King to his office, and, upon questioning by the district attorney or his staff, King admitted that he had lied under oath in the case then being tried and that he had also lied during Frazier's trial.

During Frazier's trial, King testified that he was asked by Jackson if he knew someone who would murder an unnamed person for $5,000; that he found Frazier cutting grass in his brother's yard on Dauphin Island Parkway in the middle of January and asked him if he would commit the murder; that Frazier agreed to do so; and that he instructed Frazier to get in touch with Jackson. King testified that after this conversation he had no other conversation with Jackson or Frazier about the killing. He testified that he received no payment or consideration of any kind for his part in putting Frazier in contact with Jackson. King testified that he had not been involved in any other illegal activities with Jackson. He testified that he did not own a .357 magnum pistol at the time of the murders. He further testified that he did not know why Jackson, who allegedly hired Frazier after the murders to work at Campbell Construction Company, subsequently fired him. During the Jackson trial, King admitted that he owned the .357 magnum pistol that was used to kill the Doughtys. King testified that before the murders were committed, he asked Frazier about the status of the murder of Mr. Doughty and gave Frazier his .357 magnum pistol filled with ammunition, when Frazier told him that he did not have a gun. King further testified that he demanded $1,000 from Frazier for his part in arranging the murder. King admitted having stolen a dump truck, gasoline, fuel, parts, oil, and other materials for Jackson. King further testified that Jackson told him that he had fired Frazier because Frazier had been involved in a knife fight in Birmingham and that he could not have that kind of conduct by an employee. King testified that he had several conversations with Jackson about the Doughty murders after those murders had been committed.

The district attorney nol-prossed the case against Jackson, stating as follows:

"Last night, for the first time in a year-long investigation, State witness Dickie Lane King admitted to me, my chief trial attorney Lloyd Copeland and my chief investigator, Bob Eddy, that he had not only lied concerning the extent of his involvement in the murders of Jesse and Irene Doughty, but that he had perjured himself in that regard at least twice. The guilt or innocence of Lee Jackson notwithstanding, it would be both immoral and repugnant [to] our principles of justice to ask this jury to convict Lee Jackson based upon perjurious testimony.

"My ethics as an attorney and my basic sense of decency will not allow me to proceed. I, therefore, respectfully, but reluctantly, ask this Court to nol-pros this case."

After the case against Jackson was nol-prossed, Grady Lambert, who along with Frazier and Jackson had been indicted in connection with the Doughty murders, was tried without the testimony of King and was acquitted. Admittedly, the first three witnesses described in this opinion provided more evidence to connect Frazier with the robbery and murders than they did to connect Lambert with those offenses. However, Frazier's defense at his trial was that King, in fact, had committed the robbery and the murders and that Frazier had had no involvement in them. Although the changes in King's story do not establish Frazier's innocence, they certainly showed that King had played a far greater role in the killings than had originally been divulged at Frazier's trial. On the strength of this new information, Frazier moved for a new trial. The trial court denied the motion. Frazier contends that the trial court's denial of a new trial was reversible error. We agree.

In its opinion affirming the conviction and death sentence, the Court of Criminal Appeals reasoned, in pertinent part, as follows:

"The discovery of the perjured testimony given by Dickie King also did not entitle the appellant to a new trial.

" 'In order to obtain a new trial on the basis of the use of perjured testimony by the State, a defendant must allege and prove (1) that the testimony was perjured; (2) that it was on a matter of such importance that the truth would have prevented a conviction; (3) that the State had knowledge that the testimony was perjured; and (4) that the defendant was not negligent in discovering the falsehood and in raising the issue. [Citations omitted.] This is in addition to meeting the requirements for establishing the right to a new trial on the basis of newly discovered evidence. Barnes v. State, 415 So.2d 1217 (Ala.Crim.App.1982).'

"Baker v. State, 477 So.2d 496, 504 (Ala.Crim.App.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1231, 89 L.Ed.2d 340 (1986). (Emphasis in original.)

"The appellant has not met his burden of proof, because he has neither shown that the State had knowledge that the testimony was perjured nor shown that it was on a matter of such importance that the truth would have prevented a conviction. Dickie King testified at Lee Jackson's trial that the district attorney's office was not aware that he had perjured himself. District Attorney Galanos testified at the appellant's motion for new trial that he did not know that Dickie King had perjured himself in the appellant's trial until the night following his first day of testimony in Jackson's trial. Galanos testified that he became aware of Dickie King's untruthfulness in testifying when Lee Jackson's attorney indicated, through his questioning, that several people had seen Dickie King with a gun around the time of the murders. Immediately after the district attorney's office became aware of the perjury, the court was contacted and Lee Jackson's defense counsel was also informed of the perjury.

"Although Dickie King perjured himself on a number of aspects concerning the murders, he still maintained that the appellant committed the offenses and, although that testimony shows that Dickie King was actually more involved in the offenses than he originally indicated, none of the perjured testimony concerned the appellant's role in the offenses. Therefore, the perjured testimony would not have affected the appellant's conviction or the jury's finding of his guilt. See Thomas v. State, 539 So.2d 375 (Ala.Crim.App.1988) ('Here, the excluded evidence would not have exonerated this appellant. It was merely evidence that [a...