Frazier v. State
Annotate this Case
Everette Lee FRAZIER v. STATE of Arkansas
CR94-995 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered February 12, 1996
1. Evidence -- prior consistent statement -- when not hearsay --
admissible in present case. -- 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; that was the situation in the present case, where
defense counsel made every attempt to show that a witness'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.
2. Evidence -- prior consistent statement -- limited
admissibility -- appellant could not complain that statement
was used substantively where limiting instruction was neither
requested nor accepted. -- Where 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; because the witness's prior
consistent statement was admitted for a proper purpose, and
the court offered to give a limiting instruction, appellant
could not complain on appeal that the statement was used
substantively by the State where appellant neither asked the
court for a limiting instruction nor accepted the court's
offer to give one.
3. Appeal & error -- failure to request separation of
inadmissible portions of transcribed statement -- issue could
not be argued on appeal. -- Where appellant contended that the
trial court erred in failing to separate inadmissible from
admissible portions of a witness's transcribed statement but
never raised the issue at trial nor pointed out to the trial
court the purportedly offensive portions, the issue could not
be argued on appeal.
4. Criminal procedure -- use of person's silence for impeachment
purposes -- bar does not apply to cross-examination regarding
prior inconsistent statements -- denial of mistrial motion
upheld. -- While Doyle v. Ohio, 426 U.S. 610 (1976), bars the
use against a criminal defendant of mention of his silence
after receipt of governmental assurances, it does not apply to
cross-examination that merely inquires into prior inconsistent
statements; questions that are not designed to draw meaning
from silence but are meant to elicit an explanation for a
prior inconsistent statement are not contrary to the law set
forth in Doyle; in the present case, the prosecutor's
question "Did he [the detective] cut you off?" was asked for
the purpose of helping appellant understand the prosecutor's
earlier question concerning whether the detective had given
appellant every opportunity to explain his side of the story;
accordingly, the supreme court upheld the trial court's denial
of appellant's mistrial motion.
Appeal from Benton Circuit Court; Terry Crabtree, Judge;
affirmed.
Linda Scribner, Benton County Public Defender, for appellant.
Winston Bryant, Att'y Gen., by: Vada Berger, Asst. Att'y
Gen., for appellee.
Tom Glaze, Justice.
*ADVREP4*
EVERETTE LEE FRAZIER,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE.
CR94-995
Opinion Delivered: 2-12-96
APPEAL FROM THE CIRCUIT COURT
OF BENTON COUNTY, ARKANSAS, NO.
CR92-495-1; HONORABLE TERRY
CRABTREE, CIRCUIT JUDGE
AFFIRMED
TOM GLAZE, Associate 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 cut you off?
Frazier: After I told him I wanted to see my
lawyer.
Following the above colloquy, defense counsel moved for a mistrial,
arguing the prosecutor's questioning violated the principle in
Doyle v. Ohio, 426 U.S. 610 (1976), where the Court held that the
use for impeachment purposes of a person's silence, at the time of
arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.
The short answer to Everette Frazier's argument is that while
Doyle bars the use against a criminal defendant of silence
mentioned after receipt of governmental assurances, Doyle does not
apply to cross-examination that merely inquires into prior
inconsistent statements. Anderson v. Charles, 447 U.S. 404 (1980).
Questions which are not designed to draw meaning from silence, but
are meant to elicit an explanation for a prior inconsistent
statement are not contrary to the law in Doyle. Id. at 409. Here,
the prosecutor's question, "Did he [Detective Batchelder] cut you
off?", was asked for the purpose of helping Everette understand the
prosecutor's earlier question concerning whether the detective had
given Everette every opportunity to explain his side of the story.
Accordingly, we uphold the trial court's denial of Everette's
mistrial motion.
The record in this case has been reviewed pursuant to Ark.
Sup. Ct. R. 4-3(h) for errors prejudicial to Frazier that would
warrant a reversal. No such errors have been found.
Affirmed.
DUDLEY J., dissents. 2-12-96 *ADVREP4A*
EVERETTE LEE FRAZIER,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE.
CR94-995
DISSENTING OPINION.
Robert H. Dudley, Justice.
The majority opinion may well necessitate a change in the way
attorneys prepare for trial in both civil and criminal cases. In
order to make the holding of the majority opinion and this dissent
as clear as possible, this dissent is divided into parts.
I. FACTS
A.
On October 18, 1992, the Bentonville Police Department
received a call reporting that a woman had been shot. Police were
dispatched to the scene where they found Bobby Jones and the corpse
of Wynona Frazier. Jones told the police that he was in Wynona
Frazier's home when he heard defendant, who was Wynona Frazier's
estranged husband, break through a window. He said defendant,
after breaking in, shot him twice, and then shot and killed Wynona
Frazier, and fled in his vehicle. Defendant was subsequently
charged with the attempted capital murder of Bobby Jones and the
capital murder of Wynona Frazier. The charges were joined.
B.
Over two years later, on January 7, 1994, in preparation for
the trial, defendant's attorneys interviewed Bobby Jones, who was
the only eyewitness to the crimes. As would be expected, they
asked numerous questions trying to learn all they could about the
State's primary witness. Their recorded interview was solely for
their own benefit. It was not given under oath. They began the
interview by asking Jones where he was born, where he grew up,
where he lived, how he met the defendant, whether he was married,
whether he was divorced, what caused his divorce, whether he had
children, whether he had an affair with Wynona, what he knew about
the married life of defendant and Wynona, why Wynona filed for
divorce against defendant, whether defendant paid child support to
Wynona, how defendant treated Wynona, and how the crimes took
place.
Since the interview was solely for defense counsel's benefit,
they likely did not consider the possibility that a trial court
might order a full transcription of the interview admitted into
evidence; therefore, they asked questions they would not otherwise
have asked, such as whether defendant paid child support while
separated from Wynona, whether Wynona was afraid of the defendant,
and whether she was afraid he was going to kill her. One answer
even revealed that defendant had refused to attend his grandchild's
birthday party. The interview was extensive. It contained fifty-
three pages when transcribed in the lawyer's office.
In one answer Jones told defense counsel that defendant had
asked him if he and Wynona were having an affair. In another he
said that, on the night of the shooting, he arrived at Wynona's
house around 9:00 or 10:00. In yet another answer he said that the
defendant broke the window with "some kind of board," but he wasn't
sure what kind.
C.
At trial, in the State's case-in-chief, Jones testified that
the defendant told him in October of 1992 that Wynona had said he
was making "obscene eyes" at her. He said that he arrived at the
house around 9:30 or 10:00 on the night of the shooting. He said
that he heard a noise and then "seen a two-by-four knocking out the
window."
On cross-examination, defendant's attorney asked Jones if he
told the prosecutor that he had made sexual advances toward Wynona
and whether he told one policeman that he arrived at Wynona's house
at 6:00 or 6:30, and told another that he got there at 8:00 or
9:00. He was asked whether he told one policeman that appellant
broke the window with a "wooden stick" and told another that he did
not know what type of object was used to break the window.
In the defendant's case, defense counsel began direct
examination by asking Jones if he remembered the January 7
interview with the defense attorneys. Then Jones was asked if he
knew that defendant had accused Wynona and him of having an affair
in 1992. He said that he did not remember such an incident. He
subsequently testified that, in the two weeks before the alleged
crimes, he had not been to Wynona's house very often. He was then
asked whether he had told the police that he had stopped at
Wynona's every day at 4:00 a.m. after he got off work, and that he
had done that every day for the two weeks before the crimes.
Again, he said that he did not remember. When asked about the
murder weapon, he said that he did not know how large the gun was
or what it looked like, and defense counsel then asked if he
remembered telling police that the gun was "little bitty" and that
it had a brown handle and a blackish-brown barrel. The examination
brought out inconsistencies regarding where Jones had said Wynona
was before the shooting, and revealed that he told police he was
not really clear on a lot of the details.
On cross-examination, the prosecutor asked Jones if he had
told the truth in the January 7, 1994, statement taken by the
defense attorneys, and if he had said the same things to defense
counsel that he had said to police. The State then moved to
introduce the fifty-three page transcription of defense counsel's
interview. Appellant made an extensive objection based on hearsay.
The State countered that it was offering the complete transcript of
the interview by defense counsel to rebut the insinuation of a
recent fabrication. The court admitted the fifty-three page
transcription under Ark. R. Evid. 801(d)(1)(ii). Defendant
appeals. The majority opinion holds that the transcription of
defense counsel's unsworn interview with the witness was properly
admitted as evidence. I dissent.
II. LAW
B.
Rule 801 of the Arkansas Rules of Evidence provides that
"A statement is not hearsay if ... [t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement and the statement 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." Ark. R. Evid.
801(d)(1)(ii) (emphasis added). The theory underlying the rule is
that evidence which counteracts a suggestion that the witness has
changed his story in response to a motive for fabrication, by
showing the response was the same prior to external pressure being
applied, is highly relevant in shedding light on the witness's
credibility at trial. Pennington v. State, 24 Ark. App. 70, 749 S.W.2d 680 (1988). Examples of the correct application of the rule
can be found in the following federal cases. In United States v.
Gonzalez, 700 F.2d 196 (5th Cir. 1983), the court held that the
defendant should have been allowed to introduce evidence of his
prior consistent statement to his wife where there was implication
that he had fabricated lack of criminal intent. In United States
v. Fieldman, 711 F.2d 758 (6th Cir. 1983), the court affirmed a
ruling admitting the prior consistent statement of a government
witness where defense counsel, during cross-examination and opening
and closing argument, impliedly charged that a government "deal"
motivated the witness to fabricate his trial testimony and that the
prior statement was made before the witness entered into a plea
agreement with the government. Finally, in United States v.
Albert, 595 F.2d 283 (5th Cir. 1979), cert. denied, 444 U.S. 963
(1979), the court held that it was not error to admit into evidence
a tape recording between the witness and a drug dealer, portions of
which corroborated the witness's testimony, where on cross-
examination defense counsel brought out that the witness had not
agreed to testify until an arrangement had been reached about a
disposition of the charges against defendant. See 4 Jack B.
Weinstein and Margaret A. Berger, Weinstein's Evidence,
801(d)(1)(B)[01] (1995).
Here, there was no showing of a motive to fabricate testimony
which arose between the interview with defendant's attorneys and
the testimony at trial. The witness was not charged with a crime,
there was no attempt at a "deal," and there was no threat of him
being charged. There was no attempt to work out anything with
anybody on the part of the witness. The majority opinion does not
suggest even a remote possibility of a motive to fabricate that
could have arisen between defense counsel's interview and the
trial. Such a showing, either express or implied, is essential
under the clear language of the Rule. Jones v. State, 318 Ark.
704, 889 S.W.2d 706 (1994); Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986).
Evidence of prior consistent statements cannot be used to
bolster credibility unless they come within the requirements of
Ark. R. Evid. 801(d)(1)(ii) or (iii). Todd v. State, 283 Ark. 492,
678 S.W.2d 345 (1984); Pennington v. State, 24 Ark. App. at 72, 749 S.W.2d at 681. A prior consistent statement may not be introduced
simply to bolster the testimony of a witness at trial. Pennington
v. State, 24 Ark. App. at 72, 749 S.W.2d at 681 (quoting Weinstein,
supra 801(d)(1)(B)[01] (1987)). Thus, the ruling admitting the
interview was in error.
Even if some part of the interview had been admissible within
the purview of Ark. Rule Evid. 801 (d)(1)(ii), it was admissible
only to the extent that it related to the same subject matter. The
rest of it was hearsay and not admissible. United States v.
Dennis, 625 F.2d 782 (8th Cir. 1980).
B.
The majority opinion is far reaching. Since Rule 801 applies
to all trials, it will apply to all future trials, both civil and
criminal. The majority opinion holds that prior consistent
statements, without more, are admissible to bolster a witness's
testimony. No other jurisdiction so construes Uniform Rule
801(d)(1)(ii). The result may well be that, in this jurisdiction,
an attorney can no longer take complete statements of witnesses
because such an interview can now be used by opposing counsel to
bolster the opposing party's testimony.
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