Frazier v. State

• Decision Date: 30 September 1993
• Docket Number: CR-89-1334
• Citation: 632 So.2d 1002
• Parties: Richard FRAZIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1002

632 So.2d 1002

Richard FRAZIER v. STATE.

CR-89-1334.

Court of Criminal Appeals of Alabama.

Sept. 30, 1993.

Rehearing Denied Dec. 3, 1993.

Certiorari Denied Feb. 25, 1994

Alabama Supreme Court 1930339.

Richard Shields, Holmes Whiddon and James Byrd, Mobile, for appellant.

James H. Evans, Atty. Gen., and Robert Lusk, Jr. and Sandra Stewart, Asst. Attys. Gen., for appellee.

MONTIEL, Judge.

On the morning of January 24, 1977, the bodies of Jesse and Irene Doughty were discovered in their home. Both victims had died as a result of gunshot wounds. On November 18, 1985, the appellant was indicted in a three-count indictment on three charges of capital murder. Count I charged murder wherein two or more persons are killed, § 13-11-2(a)(10), Code of Alabama 1975 (repealed); count II charged murder committed during the course of a robbery, § 13-11-2(a)(2), Code of Alabama 1975 (repealed); and count III charged murder done for pecuniary gain or other valuable consideration, § 13-11-2(a)(7), Code of Alabama 1975 (repealed) ¹. In 1986, the appellant was tried and convicted, and was sentenced to death. On March 17, 1989, this court affirmed the appellant's conviction and sentence in Frazier v. State, 562 So.2d 543 (Ala.Crim.App.1989). On November 17, 1989, the Alabama Supreme Court held that a key witness for the State had perjured himself at the appellant's trial and that court reversed this court's judgment and remanded the cause for a new trial. 562 So.2d 560. In June 1990, the appellant was again tried for capital murder and was found guilty of all three counts. The trial court sentenced the appellant to death. He appeals from that conviction and sentence.

Thomas Edward Doughty testified that he found his parents on the kitchen floor of their home in Mobile on the morning of January 24, 1977. Doughty testified that his father usually carried between $5,000 and $6,000 cash on his person and that he kept approximately $28,000 in a sofa which had a false bottom. He said that his father also had an extensive gun collection and that one of the guns had a gold trigger. Doughty testified that on the morning he found his father, there was no money on his father's person or in the sofa. Doughty further testified that at the time of his death, his father was vice-president of Campbell Construction Company and that Lee Jackson was in charge of the shop and the rental contracts for that business.

Diane Frazier testified that in January 1977, she was dating the appellant. The two began living together sometime in February or March 1977. Frazier later became the appellant's common law wife. She testified that sometime in early January 1977, the appellant asked her "about doing something, and for a large amount of money." She said she told him it was his decision and he could do what he wanted. She testified that on the Saturday before the bodies were found on Monday, she and the appellant were at Dickie and Marilyn King's house. She said that the appellant and Dickie King left the house that night and that when they returned several hours later, the appellant stated, "It's over." She testified that over the next several days, the appellant told her about the murders in a series of conversations. She said that the appellant told her that King had approached him about killing someone for Lee Jackson. Frazier said that the appellant got $5,000, Grady Lambert got $5,000, and King got $2,500 for the murders. Frazier testified that he and Lambert gained access to the Doughtys' house when Lee Jackson called the Doughtys and told them that he was having some deer meat delivered. Frazier described some of the items in the house that the appellant had told her about. She said that the day after the murder, the appellant told her he needed to get rid of the gun, so she threw it into the Dog River. According to Frazier, the appellant had lots of money right after the murder and the two spent the money on heroin--the appellant would buy $400 or $500 worth of heroin a day from Charles Turner. Frazier said that between 1977 and August 1985, the appellant got thousands of dollars from Lee Jackson. Jackson continued to give Diane Frazier money until October of 1985.

Dr. Marion Sennett, a criminalist with the Alabama Department of Forensic Sciences, testified that both victims were killed with bullets fired from the same gun. These bullets could have been fired from a .357 Colt Trooper. James Jackson, Lee Jackson's son, testified that he sold Dickie King a .357 Colt Trooper in September 1976.

Charles Turner, the appellant's cousin, testified that on the day after the murders, the appellant bought approximately $300 to $400 worth of heroin from him, which the appellant paid for with $100 bills. He said that the next day, the appellant showed him a plastic sandwich bag full of $100 bills. He said that the next week, he and Turner went to the Mobile County Work Release Center to deliver some drugs to Grady Lambert. He said that the appellant paid for these drugs in $100 bills and that the appellant bought heroin from him frequently during this time.

Dalton Henry Sheffield, Jr., testified that he, the appellant, and Grady Lambert had been lifelong friends. Sheffield said that in February 1977, he was selling drugs and that he called the appellant and asked him if he wanted to buy some drugs. According to Sheffield, the appellant told him that he did not want any but that Lambert might want some. Sheffield said he then went to the work release center and sold Lambert drugs. Sheffield said that he asked Lambert where he got the money for the drugs and that Lambert told him about the murders. Sheffield testified that in March or April 1977, the appellant stopped at Lambert's father's house; he was driving a dune buggy. Sheffield said that he asked the appellant where he had gotten the money to purchase the dune buggy and that the appellant said that he and Lambert had made a "good score." The dune buggy the appellant was driving was similar to a dune buggy that Jackson obtained from the Doughtys' children shortly after their parents' deaths.

Sheffield said that he told the appellant that day that Lambert had told him about the Doughtys and that the appellant looked surprised and then told Sheffield that he and Lambert were "big time hit men." Sheffield said that the appellant told him that Lee Jackson had paid them to murder the Doughtys because Jesse Doughty had "hurt" Jackson in some kind of construction contract. According to Sheffield, when he asked the appellant why he killed Irene Doughty, he replied that she just happened to be in the house at the time.

Richard Johnson also testified that he grew up with the appellant and Lambert. He testified that in January 1977, he was living at the work release center in Mobile and that Grady Lambert was living there at the time. Johnson said that the appellant came to the center and asked Lambert if he wanted to "do a job" with him. He said that the appellant told him that a contractor had told him that another contractor would not pay him and that the first contractor told the appellant where he could get some money on Highway 90 and there would be more money available. That night, according to Johnson, Lambert left the center and did not return for several hours. He said that later, the appellant came to the center and asked Lambert if he wanted some heroin and that Lambert gave the appellant a $100 bill. Johnson said that before he left the center that night Lambert did not have any money. Johnson testified that later that night, Lambert told him about the Doughty murders.

Johnson testified that the next day, the appellant brought Lambert some more heroin, which Lambert paid for with another $100 bill. He said that on that day, he, the appellant, and Lambert talked about the murders. Johnson said that on this occasion the appellant told him that one of the guns in the Doughty house had a gold trigger. Johnson said that when Johnson asked the appellant why he killed the woman, the appellant said he was not going to the penitentiary for anybody and that when she started screaming, he shot her and that Lambert shot Mr. Doughty. Johnson testified that the appellant said he got $10,000 from the house and that he threw the gun in the river.

The appellant's defense consisted mainly of attacking the credibility of the State's witnesses. The appellant and Lambert denied participation in the murders.

I

The appellant contends that the trial court erred in admitting the tape recording of a statement between Lee Jackson and Diane Frazier made in 1985 while Frazier was wired.

The State argues that the statement was admissible on two grounds. First, the State asserts that the statement was properly admitted as a prior consistent statement of Diane Frazier.

"As a general rule, the impeachment of a witness by the introduction of evidence that he has made a statement which is inconsistent with his testimony does not authorize the proponent of the witness to support his credibility by evidence that the witness has made a statement on another occasion of the same tenor as his present testimony."

C. Gamble, McElroy's Alabama Evidence § 177.01(2) (4th Ed.1991). However,

"Impeachment of a witness by proof of his bias in favor of the party who called him or against the other party does not authorize the admittance of evidence in support of the witness' credibility that he previously made a statement of substantially the same tenor as his present testimony. However, if it is claimed that the witness' bias arose at a particular point of time, evidence that he, prior to such particular point of time, made a statement of substantially the same tenor as his present testimony is admissible. Stated differently, it is said that a witness charged with a motive or interest to misstate or misrepresent the facts concerning which he has testified, growing out of his relation to the cause or to the litigant in...