Frazier v. State

• Citation: 758 So.2d 577
• Parties: Demetrius Terrence FRAZIER v. STATE.
• Decision Date: 15 January 1999
• Court: Alabama Court of Criminal Appeals

758 So.2d 577

Demetrius Terrence FRAZIER v. STATE.

CR-95-2222.

Court of Criminal Appeals of Alabama.

January 15, 1999.

Rehearing Denied March 26, 1999.

Virginia A. Vinson, Birmingham, for appellant.

Bill Pryor, atty. gen.; and Paul H. Blackwell, Jr., and Sandra J. Stewart, asst. attys. gen., for appellee.

BROWN, Judge.

The Jefferson County grand jury returned an indictment charging the appellant, Demetrius Terrence Frazier, with three counts of capital murder. Count I charged the appellant with the offense of murder made capital because it occurred during a robbery. See § 13A-5-40(a)(2), Code of Alabama 1975. Count II charged the appellant with the offense of murder made capital because it occurred during a burglary. See § 13A-5-40(a)(4), Code of Alabama 1975. Count III charged the appellant with the offense of murder made capital because it occurred during a rape. See § 13A-5-40(a)(3), Code of Alabama 1975. The jury found the appellant guilty of capital murder as charged in Count I of the indictment, and guilty of intentional murder, as a lesser offense to the capital murder charge in Count III of the indictment. The trial court declared a mistrial on Count II of the indictment because the jury was unable to reach a verdict on that count.

As to the appellant's capital murder conviction under Count I, the jury, by a vote of 10 to 2, recommended that the appellant be sentenced to death. The trial court followed the jury's recommendation and sentenced the appellant to death by electrocution. With regard to the appellant's conviction for the lesser offense of murder under Count III of the indictment, the trial court sentenced the appellant to life imprisonment.

The trial court, in its written sentencing order imposing the death penalty, set out the following facts:

"During the early morning of November 27, 1991, the defendant saw a light on in Pauline Brown's ground floor apartment. He removed a screen and entered through the window.

"In searching the apartment, he found $5 or $10 in a bedroom. Ms. Brown, who was asleep in her bedroom, was awakened by the defendant, who was armed, to demand more money. She gave him $80 out of her purse. After forcing her at gunpoint to have sexual intercourse from the rear, she begged him not to kill her. He then put the pistol to her head and shot.

"The defendant then left the apartment to see if anyone [had] heard the shot and, satisfied they had not, returned to the apartment to search for more money and to make sure she was dead. He went to her kitchen and ate some bananas and left the apartment. The pistol was thrown in a ditch.

"Ms. Brown died as a result of the gunshot to the back of her head."

(Supp.Rec., C.R.12.)

We note that many of the appellant's assertions were not preserved for appellate review; nevertheless, because this case involves the death penalty, we must review the appellant's assertions for plain error.

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

Rule 45A, Ala.R.App.P.

"In considering what constitutes plain error in a capital case, we have adhered to the interpretation of the term `plain error' adopted by the Alabama Supreme Court, which follows the interpretation given that term by the federal courts. See Ex parte Harrell, 470 So.2d 1309 (Ala.), cert. denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985); Ex parte Womack, 435 So.2d 766 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983). See also Hooks v. State, 534 So.2d 329 (Ala.Cr.App. 1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). Plain error is error that has or probably has adversely affected a substantial right of the appellant, Ala.R.App.P. 45A, or is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings. Ex parte Womack. The failure to object at trial weighs against any claim of prejudice an appellant may make. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990), aff'd, 577 So.2d 531 (Ala.1991)."

Bush v. State, 695 So.2d 70, 87 (Ala.Cr. App.1995), aff'd, 695 So.2d 138 (Ala.1997), cert. denied, 522 U.S. 969, 118 S.Ct. 418, 139 L.Ed.2d 320 (1997). See also Davis v. State, 718 So.2d 1148, 1154 n. 3 (Ala.Cr. App.1995), aff'd, 718 So.2d 1166 (Ala.1998).

I.

Although the issue was not raised by the appellant at trial or on appeal, this Court is required, under the plain error doctrine, to address whether the trial court had jurisdiction to adjudge the appellant both guilty of capital murder for the robbery-murder of Pauline Brown as charged in Count I of the indictment, and guilty of the intentional murder of Pauline Brown, as a lesser offense to the capital murder charged in Count III of the indictment. Based upon this Court's rationale in Borden v. State, 711 So.2d 498, 503-04 (Ala.Cr. App.1997), aff'd, 711 So.2d 506 (Ala.), cert. denied, 525 U.S. 845, 119 S.Ct. 113, 142 L.Ed.2d 91 (1998), and in Mangione v. State, 740 So.2d 444 (Ala.Cr.App.1998), we hold that the trial court could not adjudge the appellant guilty of both capital murder under Count I of the indictment and the lesser-included offense of intentional murder under Count III.

We quote extensively from our opinion in Mangione:

"Section 13A-1-8, Ala.Code 1975, provides, in relevant part:

"`(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if

"`(1) One offense is included in the other, as defined in Section 13A-1-9 ....'

"(Emphasis added in [Mangione].) Section 13A-1-9, Ala.Code 1975, provides that an offense is included in another offense if `[i]t is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged.' Intentional murder, as defined in § 13A-6-2(a)(1), Ala. Code 1975, is a statutory element of the capital offense of murder committed during a kidnapping, as that offense is defined in § 13A-5-40(a)(1), Ala.Code 1975; therefore, the state must prove the element of intentional murder to support a conviction for the capital offense of murder committed during a kidnapping. Thus, intentional murder is a lesser-included offense of the capital offense of murder committed during a kidnapping. Here, the intentional murder of [the victim] was a lesser-included offense of both the capital offense of murder committed during a kidnapping, as charged in Count I of the indictment, and the capital offense of murder committed during the course of a robbery, as charged in Count II of the indictment.

"`We recognize that the trial court may, and indeed should, properly submit to the jury all counts of an indictment and lesser included offenses reasonably supported by the evidence, notwithstanding the fact that some of the lesser included offenses constitute the "same offense" for double jeopardy purposes. Rolling [v. State], 673 So.2d [812] at 815 n. 1 [(Ala.Cr.App. 1995)], citing Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673-74, 84 L.Ed.2d 740 (1985), and King v. State, 574 So.2d 921, 935-36 (Ala.Cr.App.1990)(Bowen, J., concurring specially). However, where, as here, the jury returns guilty verdicts for both a capital offense alleged in one count of the indictment and the lesser included offense of intentional murder of a capital offense alleged in another count of the indictment, and the same murder was an element of the capital offense and the intentional murder conviction, the trial court should enter a judgment on only one of the offenses.'

"Borden v. State, 711 So.2d 498, 503 (Ala.Cr.App.1997), aff'd, 711 So.2d 506 (Ala.1998). While the appellant was properly charged with the two capital offenses, see Borden, 711 So.2d at 503-04 n. 3, and both offenses were properly submitted to the jury, the prohibition against double jeopardy was violated when the appellant was convicted of the capital offense of murder during the course of a kidnapping under Count I of the indictment and also convicted of the lesser-included offense of intentional murder under Count II of the indictment, because the `same murder was an element of the capital offense and the intentional murder conviction.' Borden, 711 So.2d at 503

. See also Coral v. State, 628 So.2d 954, 958 (Ala.Cr.App. 1992), aff'd, 628 So.2d 1004 (Ala.1993), cert. denied, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994) (holding that the defendant's conviction of the lesser-included offense of intentional murder under a count alleging the capital offense of murder-robbery and his conviction of the capital offense of murder-burglary violated the principles of double jeopardy where the same murder was an element of both convictions). Accordingly, this cause is remanded for the trial court to vacate the appellant's conviction for intentional murder, as a lesser-included offense of the capital offense of murder during a robbery, as charged in Count II of the indictment."

740 So.2d at 449. (Some emphasis original; some emphasis added.)

In the present case, as in Mangione,

"the prohibition against double jeopardy was violated when the appellant was convicted of the capital offense of murder during the course of a [robbery] under Count I of the indictment and also convicted of the lesser-included offense of intentional murder under [Count III] of the indictment, because the `same murder was an element of the capital offense and the intentional murder conviction.' Borden v. State, 711 So.2d [at] 503."

740 So.2d at 449. Accordingly, this cause is remanded for the trial court to...