Gregory Frazier v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-00113-COA
GREGORY FRAZIER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/17/2008
HON. ALBERT B. SMITH III
BOLIVAR COUNTY CIRCUIT COURT
LESLIE S. LEE
WILBERT LEVON JOHNSON
ERIN ELIZABETH PRIDGEN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
LAURENCE MELLEN
CRIMINAL - FELONY
CONVICTED OF AGGRAVATED ASSAULT
AND SENTENCED TO TWENTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND
TO PAY $93,000 IN RESTITUTION,
$10,136.83 TO THE MISSISSIPPI CRIME
VICTIMS’ COMPENSATION FUND, AND
$250 TO THE INDIGENT DEFENSE FUND
AFFIRMED - 08/17/2010
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Gregory Frazier was convicted in the Circuit Court of Bolivar County of aggravated
assault. He was sentenced to twenty years in the custody of the Mississippi Department of
Corrections (MDOC). Aggrieved, he now appeals alleging ineffective assistance of counsel
based upon his attorney’s failure to object to impermissible testimony. Finding no obvious
deficient performance by Frazier’s counsel, we affirm the circuit court’s judgment.
FACTS
¶2.
Frazier and Crystal Wadlington had been dating approximately six years before the
couple broke up approximately two weeks before April 9, 2008. On April 9, 2008, Frazier
began harassing Wadlington through numerous phone calls and text messages. At trial, Dr.
Evelyn Smith, Director of Nursing at Coahoma Community College, testified that one of her
students (Wadlington) “burst into” her office visibly upset saying that her boyfriend was
calling her and coming to kill her. Dr. Smith quickly notified the local police chief. Once
officers arrived at the scene, Wadlington received another phone call from Frazier.
Wadlington proceeded to put the call on “speaker phone” so those around her could listen.
Dr. Smith, who was still with Wadlington, overheard the voice of a man “threatening this
young lady.”
¶3.
After another threatening phone call from Frazier, Wadlington drove to a courthouse
in Clarksdale, Mississippi, to file for a restraining order against Frazier, but she was told that
she would have to seek protection in Bolivar County. Wadlington proceeded to drive back
to her house in Cleveland, Mississippi. As she traveled home, she spoke with Frazier for
most of the way. She testified that, by the time she made it home, Frazier was crying, asking
Wadlington to come over. He assured her that everything would be okay, and that he just
wanted to talk. Finally, Wadlington agreed to go to Frazier’s house.
¶4.
Wadlington and Frazier disagree as to what took place once she arrived at Frazier’s
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home and walked back to his bedroom. Therefore, we will briefly address each account.
I.
¶5.
Frazier’s Account
Frazier claims that Wadlington, for reasons unknown, attempted to lay beside him in
his bed, but because he did not trust her, he rejected her advances. After his rejection,
Frazier claims Wadlington began to clinch her purse close to her body. She then got up and
walked to the restroom. While she was in the restroom, Frazier, believing Wadlington had
a gun in her purse, retrieved his gun from under his bed and placed it under the sheets next
to him.
¶6.
Once Wadlington returned from the restroom, she sat in the recliner and placed her
purse beside her feet. This apparently alarmed Frazier, as he grabbed his gun and rolled out
of his bed. He claimed he never once pointed the gun at Wadlington. At this moment,
Frazier claimed that Wadlington pulled a knife from her purse. Frazier further stated that his
gun then accidently discharged as he attempted to disarm her. Frazier immediately dialed
911 and began administering first aid to Wadlington.
II.
¶7.
Wadlington’s Account
Wadlington’s account is much different. Wadlington asserts that as soon as she
walked into Frazier’s room, he became confrontational. She claimed that Frazier began
telling her to take off her clothes, and he accused her of “playing” him. Although she refused
to take off her clothes, she sat on the bed next to Frazier and took off her shoes and placed
her phone down. Frazier then demanded that Wadlington hand over her phone to him. When
she refused, Frazier stated: “I’m not going to ask you again,” at which point Wadlington just
“threw [the phone] on the bed.”
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¶8.
Frazier then began scrolling through Wadlington’s call logs and text messages. As
he was doing so, a “private” caller called Wadlington’s phone. As the phone continued to
ring, Frazier pointed the gun at Wadlington’s head demanding her to answer it. She did, and
after a brief exchange, the caller hung up. Frazier demanded to know the identity of the
caller, and Wadlington maintained she did not know.
Frustrated, Frazier then shot
Wadlington in the leg. He then put the gun back to her head, and he asked her once again
for the identity of the caller. Before she could answer, Frazier’s mother knocked on the
bedroom door and asked “what’s going on in there?” Frazier then went to Wadlington’s
purse and took out $270. At this point, Wadlington informed Frazier she was getting dizzy,
and shortly afterward, she passed out.
¶9.
At trial, Wadlington testified that she had nothing in her hand at the time she was shot.
She further testified that she had been shot in her femoral artery and vein, which caused
massive bleeding and loss of consciousness.
STANDARD OF REVIEW
¶10.
The standard for determining whether or not a defendant received effective assistance
of counsel is well settled. To prevail on a claim of ineffectiveness of counsel, a defendant
must demonstrate that his counsel’s performance was (1) deficient and (2) that counsel’s
deficiency actually prejudiced the defense of the case. Burnside v. State, 882 So. 2d 212, 216
(¶20) (Miss. 2004) (quoting Burns v. State, 813 So. 2d 668, 673 (¶14) (Miss. 2001)). “Unless
a defendant makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable. The focus of the
inquiry must be whether counsel’s assistance was reasonable considering all the
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circumstances.” Id. (citations omitted).
DISCUSSION
¶11.
Frazier claims on appeal that his counsel’s repeated failure to object to certain
testimonies denied him his constitutional right to effective assistance of counsel.
¶12.
We have held “[c]ounsel's choice of whether or not to file certain motions, call
witnesses, ask certain questions, or make certain objections fall[s] within the ambit of trial
strategy and will not stand as support for an ineffective assistance of counsel claim.”
Hancock v. State, 964 So. 2d 1167, 1175 (¶18) (Miss. Ct. App. 2007). There is a strong
presumption “that the attorney's conduct fell within the wide range of reasonable professional
assistance.” Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004). In Mohr v. State, 584
So. 2d 426, 430 (Miss. 1991), the Mississippi Supreme Court discussed the wide latitude
given to attorneys and our limited review of their choice of trial strategy. The supreme court
emphasized:
Judicial scrutiny of counsel's performance must be highly deferential. It is all
too tempting for a defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel's defense after it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time.
Id. at 430 (quoting Lambert v. State, 462 So. 2d 308, 316 (Miss. 1984)) (internal citation
omitted).
¶13.
After careful review of the record as a whole, we find no obvious deficient
performance by Frazier’s counsel. Although Frazier’s counsel could have properly objected
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to certain testimonies, it is improper for this Court, without more, to second-guess defense
counsel’s trial strategy.
Thus, we decline to do so here.
When counsel’s defective
performance is not obvious, the parties must “stipulate that the record is adequate” for direct
review of an ineffective-assistance-of-counsel claim before the merits can be addressed on
direct appeal. See Read v. State, 430 So. 2d 832, 841 (Miss. 1983).
¶14.
Seeing no obvious deficient performance by his trial attorney or any stipulation that
the record is adequate, we affirm without prejudice to Frazier’s right to file for postconviction relief, if he so chooses.
¶15. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO PAY $93,000 IN RESTITUTION, $10,136.83 TO THE
MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND, AND $250 TO THE
INDIGENT DEFENSE FUND IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO BOLIVAR COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
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