State v. Frazier

• Citation: 550 S.W.2d 590
• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Warren FRAZIER, Appellant. 28455.
• Court: Missouri Court of Appeals

Page 590

550 S.W.2d 590

STATE of Missouri, Respondent, v. Warren FRAZIER, Appellant.

No. KCD 28455.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Motion for Rehearing and/or Transfer Denied May 2, 1977.

Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.

John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.

Before WASSERSTROM, P. J., and SOMERVILLE and TURNAGE, JJ.

SOMERVILLE, Judge.

Defendant was indicted for first degree murder (one David L. Holiway being the victim), tried before a jury, found guilty, and sentenced to life imprisonment.

Two instances of alleged trial error are raised by defendant on appeal: (1) permitting defendant's ex-wife, Denise Frazier, to testify as to defendant's complicity in a criminal offense (shooting into a dwelling house, Section 562.070, RSMo 1969) committed during coverture over defendant's objection that such violated the "interspousal privilege", constituted proof of a separate and distinct crime wholly unrelated to the one for which defendant was being tried, and was irrelevant; and (2) admitting State's Exhibits 1, 11, 12, and 13, photographs of the victim, over defendant's objection that they were "irrelevant to any issue at trial and were offered for the sole purpose of inflaming the passions and prejudices of the jury."

Defendant has not challenged the sufficiency of the evidence to sustain his conviction. An account of the homicide, in substance, reveals that on the evening of March 12, 1975, the Holiway brothers, Michael, David (the victim) and Paul, were the occupants of an automobile traveling on 44th Street in Kansas City, Missouri, near the intersection of 44th Street and Indiana Street. Michael was driving, David was sitting in the front seat on the passenger side, and Paul was sitting in the rear seat. After crossing Indiana Street a Thunderbird automobile in front of the Holiway vehicle pulled to the right and stopped. Michael stopped his automobile alongside the Thunderbird. The defendant was identified as the driver of the Thunderbird. Two other males were in the Thunderbird. The driver of the Thunderbird, defendant, had a gun in his hand. No other weapons were observed.

A conversation ensued between the occupants of the two automobiles and shortly thereafter a volley of shots was fired from the Thunderbird at the Holiway brothers. Defendant was the only occupant of the Thunderbird actually seen brandishing a weapon (a handgun) and firing at the Holiway brothers, although the number of shots that were fired indicated that more than one weapon was involved. A bullet struck Michael and he fell out of his vehicle on the driver's side. Michael's wound was not fatal. Four bullets struck David (the victim) and he fell out of the vehicle on the passenger's side. Paul escaped unscathed.

A forensic pathologist, who performed an autopsy on the body of the victim, testified that multiple entrance gunshot wounds were observed. State's Exhibit 1 (earlier identified as a picture of David Holiway taken at the scene following the fatal shooting), 11, 12 and 13 were identified as depicting the person on whom the autopsy was performed. The pathologist also identified State's Exhibit 11 as depicting an entrance gunshot wound in the area of the victim's left knee, State's Exhibit 12 as depicting an entrance gunshot wound in the area of the victim's left shoulder, and State's Exhibit 13 as depicting an entrance gunshot wound in the area of the victim's back. The pathologist further testified that three slugs were removed from the victim's body, one from the area of the left knee, one from the area of the left chest, and one from the right lung. According to the pathologist, the slug removed from the victim's right lung was the cause of death. The pathologist delivered the three slugs removed from the victim's body to a member of the Kansas City, Missouri, police department, who in turn delivered them to a ballistic expert.

Digressing momentarily, Denise Frazier, ex-wife of the defendant, who appeared as a witness for the state, ¹ testified that on July 25, 1974, while separated from defendant but prior to their divorce, she was living in a residence at 6121 Swope Parkway which belonged to a friend of her mother. At approximately 1:30 in the morning, while sitting on the front porch, she observed a car belonging to a friend of her estranged husband drive up. She went inside the residence and locked the door. After doing so she observed defendant alight from the passenger side of the car, come upon the front porch, and knock at the front door. Seconds later, when no one responded to defendant's knock, four shots were fired through the front door. She did not actually see defendant fire the shots. She called the police after she heard the car drive away. A police officer, during the course of investigating the incident, removed four .38 caliber slugs, which had entered via the front door, from a wall in the residence.

The ballistics expert heretofore referred to testified that the slugs removed from the victim's right lung and left shoulder were fired from a .38 caliber revolver and the slug removed from his left knee was fired from a 9 millimeter, semi-automatic pistol. The ballistic expert further testified that the four .38 caliber slugs removed from the wall of the residence at 6121 Swope Parkway and the two .38 caliber slugs removed from the victim's body were fired from the same weapon.

Defendant took the stand, denied any involvement in the homicide, and offered nine alibi witnesses.

Section 546.260, RSMo 1969, addresses itself to the "interspousal privilege" aspect of defendant's first point. For all practical intents and purposes it has remained intact as originally enacted in 1879 (Section 1918, Ch. 24, RSMo 1879). Section 546.260, supra, reads: "No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a codefendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section for a defendant, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife."

The case history construing this statute evidences a metamorphosis rare in the annals of statutory law. As a proem, the common law rule was that a husband and wife could not testify for or against each other in any legal proceeding in which the other was a party, except in the prosecution of one for criminal injury to the other. State v. Willis, 119 Mo. 485, 24 S.W. 1008 (1894); and State v. Kodat, 158 Mo. 125, 59 S.W. 73 (1900). What is now Section 546.260, supra, was originally enacted to relieve certain fixed, common law disabilities attached to spousal testimony, but not to create new disabilities. State v. Kollenborn, 304 S.W.2d 855, 861 (Mo. banc 1957).

Early cases construing this statute focused upon the statutory language "at the option of the defendant". State v. Willis, supra, and State v. Kodat, supra, are illustrative of the view taken by the early cases. In Willis, the defendant was charged with uttering a forged instrument. The gist of the charge was that defendant had forged his wife's name to a promissory note. Defendant's wife, over his objection, was permitted to testify on behalf of the state that she did not sign the note in question. In reversing and remanding the court held, 24 S.W. l.c. 1009, that "both at common law and under the statute the wife of defendant was clearly incompetent as a witness on the trial of this cause, unless called by the husband, and that the court committed error in permitting her to testify against him, over his objections." In Kodat, the defendant was charged with assault with intent to kill a Mrs. Josephine Kretsch who was visiting defendant's wife when defendant appeared and provoked an argument with his wife. Defendant left, then returned with a pistol and, when his wife and Mrs. Kretsch started to flee, he fired the pistol and a bullet passed through Mrs. Kretsch's dress. Mrs. Kodat, who was divorced from defendant at the time of trial, was permitted to testify against defendant over his objection. In reversing and remanding the court held, 59 S.W. l.c. 74, that spouses "may testify for each other in criminal prosecutions, except as to confidential communications, but not against each other . . . " and at l.c. 75 that such rule prevailed even though defendant and the witness were divorced at the time of trial. See also State v. Wooley, 215 Mo. 620, 684, 115 S.W. 417, 438 (1908), where the court broadly stated "that under the law the wife is not a competent witness against her husband in a criminal case, and, had she been introduced as a witness to testify against her husband, her testimony would have been clearly inadmissible."

State v. Dunbar, 360 Mo. 788, 230 S.W.2d 845 (1950), is illustrative of the next metamorphic stage of the statute. In Dunbar, the defendant was charged with felonious assault with malice upon his wife. During the trial the wife was called as a witness by the state. Preliminary questioning by defense counsel revealed that she did not desire to testify against her husband and that she appeared as a witness solely because she had been subpoenaed. Notwithstanding her reluctance to testify against her...