Frazier v. State

• Decision Date: 12 February 1996
• Docket Number: No. CR,CR
• Citation: 323 Ark. 350,915 S.W.2d 691
• Parties: Everette Lee FRAZIER, Appellant, v. STATE of Arkansas, Appellee. 94-995.
• Court: Arkansas Supreme Court

Page 691

915 S.W.2d 691

323 Ark. 350

Everette Lee FRAZIER, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-995.

Supreme Court of Arkansas.

Feb. 12, 1996.

Linda Scribner, Bentonville, for appellant.

Vada Berger, Asst. Attorney General, Little Rock, for appellee.

GLAZE, Justice.

Appellant Everette Lee Frazier was charged with the capital murder of his estranged wife, Wynona, and attempted capital murder of Bobby Jones. Wynona and Jones were in Wynona's house sitting at the kitchen table in the early hours of October 18, 1992, when they heard a noise outside. While it was disputed at trial how Everette entered the house through a window, it is clear he and Jones scuffled, and during the following course of events, Wynona was shot to death, and Jones was shot in the arm and neck. Everette was convicted of capital murder and attempted first degree murder and given respective consecutive sentences of life imprisonment without parole and thirty years imprisonment. Everette's points for reversal are that the trial judge erred (1) in admitting into evidence transcribed, pretrial statements Jones had given defense counsel and (2) in failing to grant Everette's motion for mistrial wherein he claimed the prosecutor's cross-examination of him at trial violated his due process right by drawing attention to Everette's silence at the time of his arrest. We find no merit in these arguments.

Everette's first argument turns on Jones's statements given to officers when they investigated the shootings and his taped statements given to defense counsel several weeks before trial. At trial, the state called Jones as its witness, and Jones described that, on the morning of October 18, 1992, Everette broke a window with a two-by-four board, and bearing a pistol, he climbed through the window into the house, shot Jones twice, and after shoving Wynona into a chair, shot her in the face, killing her. Jones said that Everette came towards him again, and Jones kicked him in the head, after which Everette left the premises, got in his car and drove away.

Upon cross-examination, defense counsel attempted to attack Jones's credibility in numerous ways. First, defense counsel asked questions of Jones in an effort to show Jones had an ongoing affair with Wynona dating at least back to 1991 when Everette and Wynona were initially estranged and Everette had filed for divorce. Counsel further questioned Jones, suggesting that Jones had increased the amount of time he spent with Wynona in 1992 when Everette and Wynona were again estranged, but not divorced. Jones denied having any affair with Wynona and claimed he would not do so until she was divorced. He did admit that he went by her house once or twice during a week after he got off work at 4:00 a.m., but only went in when a light was on.

In continuing cross-examination, defense counsel utilized prior statements Jones had given to detectives and asked Jones to explain their inconsistencies with Jones's trial testimony. For example, counsel showed Jones gave earlier statements to detectives, reflecting that Jones was not sure what Everette used to break out the window, that he could not see anything when Everette gained access into the house and went over to Wynona, and that he could not remember if he told detectives that Everette pointed a gun.

In Everette's case-in-chief, counsel called Jones as a witness, and questioned him in an effort to show Jones was having an affair with Wynona and to show Jones's account of what occurred on October 18, 1992 was conflicting and unclear. Counsel further questioned Jones's earlier testimony as the state's witness by again pointing out purported inconsistencies indicating Jones was uncertain as to how Everette gained entrance through the window, what kind and size of gun Everette possessed, how Wynona got in the chair in which she was shot, and whether he was sure Wynona was shot while sitting in the chair. Counsel attempted to question other details, but his foregoing questions are sufficient to show he thoroughly took issue with Jones's trial testimony by utilizing and seizing upon any inconsistency and failure in recollection that surfaced in Jones's story.

At the end of defense counsel's examination of Jones, the state proceeded in its questioning of him in an attempt to rehabilitate him. After briskly examining Jones over many of the points defense counsel covered on direct, the state offered to introduce the taped and transcribed statement that Jones had given defense counsel several weeks prior to trial. Defense counsel's objection to Jones's statement, the state's response and court's ruling were as follows:

Defense counsel: Your Honor this is the State's way of getting around hearsay. This is not a sworn statement. It is used solely for impeachment purposes, and they are not to be considered as evidence.

Court: And I can do that, give that instruction if you wish.

Defense counsel: Your Honor, I object to the introduction of this.

State: The State would say that this is not hearsay, A.R.E. 801(d)(1)(ii). This is a statement that is consistent with his testimony.

Court: It seems like the issue is when they cross-examine someone over prior inconsistent statement, its got to be afforded to opposing counsel. State is introducing it as a prior statement of the Defendant, and they are entitled to. It may be admitted.

The trial court ruled correctly. It is settled law that a prior statement by a witness testifying at a trial is not hearsay if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994); Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994); George v. State, 270 Ark. 335, 604 S.W.2d 940 (1980); see also Ark.R.Evid. 801(d)(1)(ii). That is the situation here. Defense counsel made every attempt to show Jones's trial testimony was inconsistent with his earlier statements and fairness dictated that the prosecutor be allowed to explore this area of inquiry to clarify any confusion or misapprehension that may have lingered in the jury's mind from defense counsel's examination. Cooper, 317 Ark. at 489, 879 S.W.2d at 407.

Everette argues on appeal that the court erred by allowing the state to introduce the prior statement because unsworn out-of-court statements in criminal cases are excluded as substantive evidence. This argument is misplaced, as the statement introduced was not hearsay under Ark.R.Evid. 801(d)(1)(ii), and was not offered to prove the truth of the matter asserted, but to rebut an express or implied charge of recent fabrication. Although the prior statement could not have been introduced to prove the truth of the matter asserted, when evidence is admissible for one purpose but not admissible for another purpose, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Ark.R.Evid. 105. Because the statement was admitted for a proper purpose, and the court offered to give a limiting instruction, Everette may not now complain that the statement was used by the state substantively when Everette neither asked the court for a limiting instruction nor accepted the court's offer to give one. See Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); see also Bliss v. State, 288 Ark. 546, 708 S.W.2d 74 (1986).

Before leaving this point, we note that Everette's argument on appeal complains that, besides Jones's prior consistent statements, his entire statement given to defense counsel contained other inadmissible remarks which should have been excluded. However, even if this was true, Everette never raised this issue at trial, nor did he point out to the trial judge those purported offensive portions he now argues on appeal. Without making such a request below, Everette cannot argue on appeal that the judge erred by failing to separate inadmissible portions of the transcribed statement from the admissible portions. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).

Everette Frazier's second point asserts the trial court erred in not declaring a mistrial when the state cross-examined him at trial about his having invoked his right to remain silent when questioned by Detective Donald R. Batchelder the day of his wife's shooting. The prosecutor's examination of Everette follows:

Prosecuting attorney: You recall talking to Detective Batchelder back on October 18th, don't you?

Frazier: Yes, sir.

Prosecuting attorney: And you heard his testimony about your conversation, didn't you?

Frazier: Yes, sir.

Prosecuting attorney: And he asked you if you had been over to the residence that night, didn't he?

Frazier: I believe so.

Prosecuting attorney: And you denied it twice; did you not?

Frazier: Yep.

Prosecuting attorney: And that was a lie, wasn't it?

Frazier: I merely told him I hadn't been there.

Prosecuting attorney: And that was a lie, wasn't it?

Frazier: Whenever I was there, the shooting went on, I didn't know nobody was shot. If I had known just one of them had been shot, I would have got them medical attention right then. If I would have had to have, I would have took them to the hospital myself.

Prosecuting attorney: Mr. Frazier--

Frazier: I didn't--I told him I hadn't--

Prosecuting attorney: --do you deny--

Frazier: --been there because I didn't want to talk about it. I couldn't talk about it.

Prosecuting attorney: It was a lie, wasn't it?

Frazier: I answered your question.

Prosecuting attorney: Mr. Frazier, it was a lie, wasn't it?

Frazier: I said--I said that it was.

Prosecuting attorney: Did Detective Batchelder give you every opportunity to tell your side of the story?

Frazier: Not actually. He just sat down and started asking my questions.

Prosecuting attorney: Did he give you every opportunity?

Frazier: I don't know what you mean by every opportunity.

Prosecuting attorney: Did he...