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Frazier v. State

Alabama Court of Criminal Appeals

September 8, 2017

Elijah Ray Frazier
State of Alabama

         Appeal from Montgomery Circuit Court (CC-14-1064)

          KELLUM, JUDGE.

         The appellant, Elijah Ray Frazier, was convicted of two counts of capital murder in connection with the murder of Keon Sankey. The murder was made capital (1) because it was committed during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and (2) because Frazier shot Sankey while Sankey was inside a vehicle, see § 13A-5-40(a)(17), Ala. Code 1975. The trial court sentenced Frazier to life imprisonment without the possibility of parole for each conviction.[1]

         The evidence adduced at trial indicated the following. Around 4:00 p.m. on November 20, 2013, Sankey drove to the home of Aaron Simmons, who had agreed to help Sankey purchase marijuana. When Sankey arrived, Simmons was sitting in the front passenger seat of Eddie Osborne's automobile parked in front of Simmons's house; Osborne was in the driver's seat. Sankey parked his vehicle and walked to the passenger side of Osborne's vehicle. Simmons opened the passenger-side door, and Sankey spoke with Simmons and Osborne. Both Simmons and Osborne testified that they then heard a loud noise and saw Frazier and Rodricko Davis[2] hit Sankey in the head from behind with pistols and say "give it up." (R. 126.) Sankey said "I ain't got nothing" and then dove into Osborne's vehicle, crawled across Simmons and Osborne, and exited the other side of the vehicle through the driver's door. (R. 126.)

         Osborne and Simmons both testified that, as Sankey was crawling across them, Davis pointed his pistol inside the vehicle and pulled the trigger but the pistol did not fire. Osborne said that Davis pulled the trigger at least one more time but that the pistol still did not fire; Simmons said that Davis pulled the trigger "[a] bunch of times" but that the pistol never fired. (R. 203.) At that point, the testimony reflected, Simmons grabbed Davis and the two struggled over Davis's pistol. According to Simmons, Davis said: "I don't want to shoot you, but I'll shoot you if I have to." (R. 204.) As Simmons and Davis struggled, Sankey and Osborne exited Osborne's vehicle on the driver's side. Frazier then ran around to the driver's side of Osborne's vehicle.

         Simmons testified that, at that point, he heard a gunshot, saw Frazier grab Sankey and search his pockets, and then saw Sankey run to his car. Osborne, however, testified that Frazier did not search Sankey but that Sankey turned and ran to his car before Frazier got close to him. As Sankey was running to his car, Osborne said, he heard Davis say "shoot him" and Frazier then shot Sankey. (R. 129.) Sankey continued to his car, and both Simmons and Osborne testified that, after Sankey got into his vehicle, Frazier, who followed him, opened the driver's side door and shot Sankey again. Sankey then drove away. Osborne testified that Frazier shot Sankey once while Sankey was in his vehicle; Simmons testified that he thought Frazier had shot at Sankey "two or three times" while Sankey was in his vehicle and as Sankey drove away. (R. 206-07.) After Sankey fled, Frazier and Davis also fled.

         Although Sankey managed to flee the attack, he crashed his vehicle a short distance away. He was subsequently transported to a local hospital where he underwent emergency surgery to repair the femoral artery in his left thigh. He died several hours later. Medical examiner Alfredo Paredes testified that he performed the autopsy on Sankey. Dr. Paredes testified that Sankey's cause of death was multiple gunshot wounds. Specifically, Dr. Paredes testified that Sankey was shot twice. One shot entered the back of Sankey's right leg, traveled upward and to the left, and exited the left groin area. The other shot entered the outer portion of Sankey's left forearm, traveled through the forearm and exited the inner forearm, and then entered the front of Sankey's left thigh and exited the back of the thigh. Dr. Paredes found no gunpowder stippling around the wounds. Dr. Paredes also testified that there was internal bruising under the scalp on Sankey's right temple but that there were no noticeable external injuries in that area.

         At the scene of the shooting, police found three shell casings. In Sankey's car, police found a fired bullet lodged in the driver's seat. There was also a bullet hole in the door frame on the driver's side of the car. The shell casings were nine-millimeter Luger casings; the bullet was also a nine-millimeter Luger bullet. Expert testimony indicated that all three shell casings had been fired from the same weapon. Several fingerprints were lifted from Sankey's car, most of which belonged to Sankey himself, but three of which belonged to Kertavious Thomas, who testimony indicated was a friend of Sankey's. Neither Frazier's fingerprints nor Davis's fingerprints were found on Sankey's car. Additionally, in one of Sankey's pants pockets, police found $2, 660.

         Michael Knox, a forensic consultant, testified for the defense. Knox testified that he examined the crime-scene photographs, police reports, and laboratory reports, including the autopsy report, related to the shooting of Sankey. Knox testified that, in his opinion, the shot that passed through Sankey's left arm and left thigh and had lodged in the driver's seat of Sankey's vehicle had to have been fired from a firearm that was "inside the vehicle and would be pointing downward at him at a fairly close range" (R. 395) so that there would have been "evidence of gunpowder and gun residue" on Sankey if Sankey had been seated inside his vehicle at the time of the shot. (R. 396.) The lack of gunpowder stippling around the wounds, Knox concluded, indicated that Sankey was not inside his vehicle at the time of that shot. Knox also testified that the absence of any external injuries on Sankey's head indicated that he had not been hit with a pistol, as Simmons and Osborne had testified.

         After both sides rested and the trial court instructed the jury on the applicable principles of law, the jury convicted Frazier of both counts of capital murder as charged in the indictment. This appeal followed.


         Frazier first contends that the trial court erred in allowing the lead investigator, Detective Guy Naquin with the Montgomery Police Department, to testify that Frazier's sister had given him a handwritten letter.

         Before trial, Frazier filed a motion in limine to prohibit the State from introducing the letter into evidence on the ground that the letter could not be authenticated. The trial court deferred ruling on the motion. The record reflects that the letter was never offered into evidence by the State, nor did the State present any testimony regarding the contents of the letter or who authored the letter. Outside the presence of the jury, the State posited that Frazier had written the letter and had given it to D'Angela Richardson who had, in turn, given it to Frazier's sister, Brandy, who had then given it to Det. Naquin. In the letter, Frazier stated that Davis was the person who had shot Sankey but that he owned the gun that was used to shoot Sankey, and he requested that the letter be shown to his family and "the police or whoever can free me." (R. 307.) The record indicates that the State had subpoenaed Richardson to testify about the letter but that she failed to appear the first day of trial. The trial court then issued a warrant for Richardson's arrest.

         Det. Naquin was the State's last witness during its casein-chief. During direct examination, the prosecutor asked Det. Naquin if he had ever had contact with any of Frazier's family members, and Det. Naquin stated that he had had contact with Frazier's sister, Brandy. The prosecutor then asked Det. Naquin what the contact with Brandy was about, and Frazier objected. Frazier argued that the letter could not be authenticated through Det. Naquin. The State indicated that it was not going to introduce the letter into evidence or reveal the contents of the letter to the jury during Det. Naquin's testimony but that it was simply going to ask Det. Naquin if he had received the letter and ask him to identify the letter. The trial court indicated that it would allow the State to question Det. Naquin regarding whether he had received the letter and how he had received the letter because the letter had been received as part of his investigation. Frazier argued that allowing Det. Naquin to testify that he had received the letter without the letter being admitted or its contents revealed to the jury would leave the jury wondering about the letter, which, he said, would be prejudicial to him. The trial court disagreed and overruled Frazier's objection.

         Det. Naquin then testified that on December 17, 2013, Brandy Frazier had come to his office unannounced and had given him a handwritten letter. Det. Naquin identified State's Exhibit 38 as the letter he had received from Brandy. Det. Naquin testified that when Brandy gave him the letter she told him where she had gotten it. At that point, the trial court stopped the State's questioning regarding the letter. At the conclusion of Det. Naquin's testimony, a lunch break was taken. Before the break, the State indicated that it was going to continue its search for Richardson over the break but that, if it could not locate her, the State would rest its case. The State was apparently unable to locate Richardson, and it rested its case after the break, without introducing the letter.

         Although Frazier admits that the letter was not admitted into evidence and that neither the contents of the letter nor the purported author of the letter were revealed to the jury, he argues that Det. Naquin's testimony that he had received the letter was irrelevant and inadmissible and prejudiced him. Specifically, Frazier argues that "[t]he mere mention of the letter ... created a 'McGuffin' effect often used in movies, whereby the mystery of the letter's contents casts a nefarious and false shadow of guilt upon Frazier" (Frazier's brief, p. 17) and that "the mention of the letter alone was indeed a slick device by the State, made to induce an emotional bias against Frazier, not one based on fact." (Frazier's brief, p. 20.) We disagree.

         "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000). Additionally, "[t]rial courts are vested with considerable discretion in determining whether evidence is relevant, and such a determination will not be reversed absent ... an abuse of discretion." Hayes v. State, 717 So.2d 30');">717 So.2d 30, 36 (Ala.Crim.App.1997).

"Rule 402, Ala. R. Evid., provides that '[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State.' Rule 401, Ala. R. Evid., defines 'relevant evidence' as 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' 'Alabama recognizes a liberal test of relevancy, which states that evidence is admissible "if it has any tendency to lead in logic to make the existence of the fact for which it is offered more or less probable than it would be without the evidence."' Hayes[ v. State], 717 So.2d [30, ] 36 [(Ala.Crim.App.1997)], quoting C. Gamble, Gamble's Alabama Evidence § 401(b) [(5th ed. 1996)]. '[A] fact is admissible against a relevancy challenge if it has any probative value, however[] slight, upon a matter in the case.' Knotts v. State, 686 So.2d 431, 468 (Ala.Crim.App.1995), aff'd, 686 So.2d 486 (Ala. 1996). Relevant evidence should be excluded only 'if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.' Rule 403, Ala. R. Evid."

Gavin v. State, 891 So.2d 907, 963-64 (Ala.Crim.App.2003).

         The record indicates that, at the time Det. Naquin testified, the State was planning to introduce the letter into evidence if it could lay the proper predicate. The State had subpoenaed Brandy Frazier and D'Angela Richardson[3] and was actively searching for Richardson throughout the trial after she had failed to appear. Det. Naquin's testimony was part of the predicate to admit the letter and was, thus, relevant at the time his testimony was offered. Although the State was ultimately unsuccessful in locating Richardson and, as a result, was unable to offer the letter into evidence, that did not render irrelevant Det. Naquin's testimony about his receipt of the letter. Nor do we believe that Det. Naquin's testimony that he had received the letter was, alone, prejudicial to Frazier. Frazier speculates that the mere mention of the letter suggested his guilt; however, nothing in the record supports such speculation. On the contrary, after thoroughly reviewing the record, we conclude that Det. Naquin's limited testimony was, at most, innocuous and in no way prejudicial to Frazier. Therefore, the trial court did not err in allowing Det. Naquin to testify that he had received a letter from Frazier's sister.


         Frazier next contends that the trial court erred in refusing to admit into evidence a transcript of the prior testimony of Simmons and Osborne given during the trial of his codefendant, Rodricko Davis.

         The record reflects that Frazier cross-examined Simmons and Osborne about their prior trial testimony, using the transcript of that prior testimony to highlight what Frazier believed were inconsistencies between the prior testimony and the testimony at Frazier's trial. Frazier asked Simmons several questions about his prior testimony. Simmons denied having made one of the prior statements about which he was questioned, could not recall some of the prior statements about which he was questioned, and admitted making three of the prior statements about which he was questioned.[4] The record indicates that Frazier asked Osborne only two questions about his prior testimony, and, in both instances, Osborne admitted to having made the statements in his prior testimony.[5] (R. 137-38.)

         At the conclusion of the State's case-in-chief, but before the State formally rested, Frazier notified the trial court that he intended to introduce into evidence a transcript of the entirety of Simmons's and Osborne's prior trial testimony. The trial court indicated that it did not believe the transcript was admissible, but the trial court stated that if Frazier could provide the court with law indicating that the transcript was admissible, the trial court would allow it. After the State rested, Frazier moved for a judgment of acquittal, which was denied. Frazier then presented his sole defense witness, Michael Knox. After Knox's testimony, Frazier rested his case and renewed his motion for a judgment of acquittal. When arguing his motion for a judgment of acquittal, Frazier moved to enter into evidence the transcript of Simmons's and Osborne's prior trial testimony and argued that the Alabama Supreme Court's opinion in Hooper v. State, 585 So.2d 137 (Ala. 1990), allowed for the admission of a transcript of prior trial testimony. The State objected, and the trial court refused to admit the transcript.[6]

         On appeal, Frazier argues that the transcript of Simmons's and Osborne's prior trial testimony was admissible as substantive evidence and that the trial court erred in refusing to admit the transcript. As he did in the trial court, Frazier relies on Hooper, supra.[7] Frazier's argument confuses and conflates two separate legal principles: (1) whether a prior inconsistent statement may be used as substantive evidence as well as impeachment evidence and (2) whether a party may present extrinsic proof of a prior inconsistent statement.

         Frazier is correct that a prior inconsistent statement by a witness, if made under oath at a prior trial, may be used as substantive evidence, and not merely as impeachment evidence. In Hooper, the defendant was tried and convicted of two counts of second-degree rape of his daughter. His convictions were reversed on appeal. On retrial, the victim recanted her story and testified that the defendant had not raped her. The prosecutor questioned the victim about her testimony in the previous trial and requested that the trial court instruct the jury that the victim's prior inconsistent testimony could be considered substantive evidence of the defendant's guilt. The trial court gave the requested instruction, and the Alabama Supreme Court upheld the instruction. The Court noted that the general rule at that time was that prior inconsistent statements of a witness could be considered only as impeachment evidence and not as substantive evidence of guilt. The Court, however, changed that general rule and held "that a prior inconsistent statement of a witness who takes the stand and is available for cross-examination may be used as substantive evidence if the prior statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Hooper, 585 So.2d at 140. The holding in Hooper was subsequently codified in Rule 801(d)(1)(A), Ala. R. Evid.

         In Hooper, the prior inconsistent testimony was elicited through questioning of the victim. Nothing in the opinion in Hooper indicates that the prosecutor had offered into evidence a transcript of the victim's prior testimony, nor does the opinion in Hooper speak to the issue of the admissibility of a transcript of a witness's prior testimony as extrinsic proof of a prior inconsistent statement. Hooper stands only for the proposition that a prior inconsistent statement made under oath in a prior trial may be used as substantive evidence and not just impeachment evidence.

         In this case, however, the trial court did not rule that Simmons's and Osborne's prior inconsistent statements, as brought out on cross-examination, could not be used as substantive evidence. The trial court's only ruling in this case was that the transcript of Simmons's and Osborne's prior testimony was not admissible as extrinsic proof of their prior statements. That ruling was correct.

         With respect to Osborne, as noted above, Frazier asked only two questions about Osborne's prior trial testimony, and Osborne admitted that he had made both prior statements. Rule 613(b), Ala. R. Evid., provides that "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it." The Advisory Committee's Notes to that rule state: "Nothing in Rule 613(b) affects that line of authority providing that a witness's acknowledgment of having made a prior statement precludes the use of extrinsic evidence to prove the inconsistent statement." See also Charles W. Gamble and Robert J. Goodwin, McElroy's Alabama Evidence § 157.03(2) (6th ed. 2009) ("Courts disallow proof of a self-contradiction by extrinsic evidence, such as writings or the testimony of others, if the witness unequivocally admits having made the self-contradictory statement. This has been recorded as the majority position nationally." (footnote omitted)). Because Osborne admitted having made the prior statements, Frazier was precluded from providing extrinsic proof of those statements. Therefore, the trial court properly excluded the transcript of Osborne's prior trial testimony.

         With respect to Simmons, as noted above, Simmons admitted having made three of the prior statements about which he was questioned, but he either denied or did not recall having made the remainder of the prior statements about which he was questioned. Although extrinsic proof of a prior inconsistent statement is not admissible if the witness admits having made the statement, if the witness denies having made the statement or does not recall making the statement, extrinsic proof of the prior inconsistent statement is generally admissible. See, e.g., McElroy's Alabama Evidence, supra, § 157.03(1) ("If a proper predicate has been laid, proof may be made by others that the witness made the supposed self-contradictory statement whether the witness denies having made it or merely states that he does not remember whether or not he made it."). See also Boyd v. State, 590 So.2d 344, 349-50 (Ala.Crim.App.1989) ("Impeachment of a witness by use of a prior inconsistent statement can be accomplished by either the testimony of the witness to whom the statement was made or by admitting the prior inconsistent statement itself, if it is a writing.").

         However, "[i]f a witness makes a statement on the trial of the case, and has made a contradictory statement on another trial, and proper predicate laid, such testimony on the former trial as tends to contradict the witness may be introduced, but not the entire transcript of all the proceedings of the previous trial, and the court is under no duty to pick out the parts which are relevant and which are not." Gaither v. State, 21 Ala.App. 165, 167, 106 So. 348, 349 (1925). Although Frazier did not offer the entire transcript of the prior trial, he did offer the entirety of Simmons's prior testimony, the majority of which was consistent with his testimony at Frazier's trial. Prior ...

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