Frazier v. State

• Citation: 562 So.2d 543
• Decision Date: 17 March 1989
• Docket Number: 1 Div. 361
• Parties: Richard FRAZIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 543

562 So.2d 543

Richard FRAZIER v. STATE.

1 Div. 361.

Court of Criminal Appeals of Alabama.

March 17, 1989.

James H. Lackey, Mobile, for appellant.

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

ON APPLICATION FOR REHEARING

McMILLAN, Judge.

This court's opinion of September 20, 1988 is withdrawn and the following is substituted therefor.

The appellant was indicted for the following three counts of capital murder: murder wherein two or more persons are murdered by one or a series of acts, § 13-11-2(a)(10), Code of Alabama (1975) (repealed); murder committed during the course of robbery in the first degree, § 13-11-2(a)(2), Code of Alabama (1975) (repealed); and murder done for a pecuniary or other valuable consideration or pursuant to a contract or for hire, § 13-11-2(a)(7), Code of Alabama (1975) (repealed). ¹

As a preface to our rendition of the facts of this case, it is noted that throughout the trial and on appeal the State's entire case against the appellant was based on the testimony of four witnesses whose credibility was highly questionable. One of the witnesses was subsequently determined to have perjured himself throughout this trial; another witness gave three inconsistent statements prior to testifying at this trial; and the remaining two witnesses had a combined total of 28 prior felonies. Apparently, the State's evidence, with the exception of a few bullets, was thrown out by the police department. Although the appellant's trial took place in 1986, the offense was committed in 1977 and, therefore, the witnesses were testifying concerning events which took place nine years prior to trial.

Dickie King testified pursuant to an agreement made with the district attorney's office, which was admitted into evidence. The agreement essentially stated that the State understood that King's entire role in the offense was that of a "middleman" who put Lee Jackson, the man who wanted the victims killed, in contact with the appellant, the "hit man." Pursuant to the agreement, Dickie King would not be prosecuted for his role in this offense provided that he cooperated fully with the State, that he testified against the appellant truthfully, and that his role in the offense was no more than he had indicated. Dickie King testified that he had been employed by Lee Jackson and that, during January 1977, Jackson approached him and asked if he knew anyone who would kill someone for approximately $5,000. King responded that his brother-in-law might be interested and could "keep his mouth shut." King testified that he thereafter found his brother-in-law, the appellant, cutting his brother's grass. ² King asked the appellant if he would be interested in committing the murder. The appellant asked King how much money was involved and he replied, "Five thousand dollars." The appellant indicated that he was interested and King informed him that he should contact Lee Jackson at Campbell Construction Company, where he was working. King testified that two or three days after this conversation, he observed the appellant at the shop area of Campbell Construction Company, talking with Lee Jackson. King testified that he could not hear what was being said and had no further conversations with the appellant concerning the murder prior to the offense. King testified that he learned of the murders on a Monday and that, on the Saturday prior to that Monday, the appellant was at his house. The appellant and Diane Frazier, who subsequently became the appellant's common-law wife, had been staying with him. King testified that the appellant left the house at approximately 6:00 p.m. in a green Ford Torino automobile, which King had seen at Campbell's shop previously. He testified that the appellant returned in approximately three hours, accompanied by Grady Lambert. He stated that Lambert's face had red spots on it, which, after he cleaned up in the bathroom, were removed. He further testified that both Lambert and the appellant appeared to be "scared"; that the appellant and Diane Frazier went into the back room and talked; that when the appellant came out, he asked King to drive Lambert and him to the work release center, and that he did so and dropped Lambert off there; and that he then drove the appellant to a night club. King testified that the next morning, Lee Jackson contacted him and told him to take the green Torino up to a shopping center and to leave the keys in it, and that he would have it picked up. King testified that, several days later, he saw the appellant, who had been drinking. He testified that the appellant began discussing the murder and told him that Grady Lambert and he had killed the victims, Jessie and Irene Doughty. He stated that he had to wrestle Mr. Doughty back into the house and that the shootings had taken place in the kitchen. He further stated that he took $7,000 from Mr. Doughty.

Approximately a month prior to trial, Dickie King was picked up by the F.B.I. and the chief investigator for the district attorney's office. He was placed under arrest and subsequently informed that he was picked up for suspicion of being involved in the murders of Jessie and Irene Doughty. He then informed the authorities of his knowledge concerning the murders, and his agreement with the State was made.

King further testified that, aside from an incident involving a truck, he was never involved in any other illegal activities and that he was never involved in any other illegal activities with Lee Jackson. He testified that he did not own a gun around the time of the murders and that, although he helped the appellant get a job with Campbell Construction Company after the murders, he did not know why the appellant was subsequently fired. King admitted that he and the appellant had gotten in a fight over King's involvement with Diane Frazier.

The appellant's defense and trial strategy were predicated upon the theory that Dickie King had committed the murders.

Following the appellant's conviction, Dickie King testified for the State at the trial against Lee Jackson. After defense counsel had begun his cross-examination of Dickie King and the court had recessed for the day, apparently the district attorney had Dickie King called to his office and indicated to him that he knew that King was lying. Dickie King then informed District Attorney Chris Galanos that he had in fact supplied the murder weapon, which was a gun he had gotten from Lee Jackson's son. He also admitted that he had received $1000 for his role in the offense. He further testified, during the trial against Lee Jackson, that he had also lied concerning the following testimony: he had stolen for Lee Jackson on several occasions; he had one or two other conversations with Lee Jackson after the Doughty killings; he knew that the appellant was fired by Lee Jackson several months after the killing because of a fight the appellant was involved in while he was in Birmingham; he spoke to the appellant on another occasion prior to the murder to determine how things were going and the appellant informed him that he could not find a weapon. Defense counsel indicated that Dickie King had asked several people, prior to the murders, the most effective way to commit a murder. Further, although Dickie King had testified that Lee Jackson contacted him by telephone on Sunday and told him to have the green Ford Torino moved to a shopping center, according to the city directory, Dickie King had no telephone at that time. Dickie King responded by testifying that he had a phone listed under the alias "Sammy King" because he had had trouble with the telephone company. However, according to the city directory, there was no phone listed to Sammy King.

Dickie King also testified, during Lee Jackson's trial, that despite his perjured testimony during the appellant's trial, his agreement with the State for non-prosecution remained intact. Because of the discovery of this perjury, District Attorney Chris Galanos nol-prossed the case against Lee Jackson. Furthermore, Grady Lambert, who was subsequently tried, was acquitted.

Diane Frazier, who was the appellant's girl friend at the time of the offense and subsequently became his common-law wife, testified for the State. She admitted having taken heroin on the day of the offense and to having a long history of drug abuse, addiction, and treatment. She also had three forgery convictions and one possession conviction. Prior to her testimony, she gave three inconsistent statements to the police. She gave her first statement in January 1980, when she signed a complaint against the appellant for assault. In this oral statement, Diane Frazier told Sergeant Farmer, of the Mobile Police Department, that her husband committed the murders. Sergeant Farmer testified that, although he recalled her giving the statement, no follow-up investigation was made pursuant to that information.

In 1981, she gave a written statement to the police when she was arrested for forgery. In that statement, she told Sergeant Farmer that at the time of the murders Dickie King drove his truck to within a few blocks of the Doughtys' residence. She stated that Grady Lambert, the appellant, and she were also present. She stated that Dickie King, Grady Lambert, and the appellant were admitted at the front door by Mr. Doughty; that they had come under the pretense that they were bringing him deer meat. She said that Doughty took the meat and went to put it in the freezer. She also stated that Lambert and the appellant walked through the victims' house taking things and found $4000 to $5000 in Mrs. Doughty's dresser drawer where her underwear was kept. She stated that the murder was planned by the appellant, Dickie King, and Lee Jackson at Campbell Construction. Following the murders, she stated, they returned to Dickie King's residence and the appellant and Grady Lambert behaved normally. She also told Sergeant Farmer that...