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State v. Frazier

Court of Criminal Appeals of Tennessee, Knoxville

July 1, 2019

STATE OF TENNESSEE
v.
JAMAR LAQUINN FRAZIER

          Session January 24, 2019

          Appeal from the Criminal Court for Knox County No. 99921 G. Scott Green, Judge

         The Defendant, Jamar Laquinn Frazier, was convicted by a Knox County Criminal Court jury of first degree premeditated murder. See T.C.A. § 39-13-202 (2014). He received a life sentence. On appeal, the Defendant contends that (1) the evidence is insufficient to support his conviction, (2) the trial court erred by admitting evidence in violation of the Tennessee Rules of Evidence, and (3) the trial court erred by providing a jury instruction on flight. Although we conclude that the evidence is sufficient to support the

         Defendant's conviction, we conclude that the trial court erred by admitting evidence related to the Defendant's previous gun possession and to the Defendant's possible involvement in the killing of a witness to the shooting in this case. We reverse the judgment of the trial court and remand the case for a new trial.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed: Case Remanded

          Joshua Hedrick, Knoxville, Tennessee, for the appellant, Jamar Laquinn Frazier.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; Charme Allen, District Attorney General; and Leslie Nassios, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises from the July 3, 2012 killing of Christopher Melton in Knox County. The Defendant was arrested in Chattanooga and charged with first degree premeditated murder. At the January 19, 2016 jury trial, a recording of a 9-1-1 call was received as an exhibit and played for the jury.

         In the recording, a female caller stated that a shooting had occurred near her home and that she saw four or five African-American men fighting in the street before the shooting. The caller said that she heard three shots, that she saw a man walk by her home, and that the man ran away. She stated that someone had been shot. When asked if the shooter was still at the scene, she responded, "No, they just disappeared. They got in the car maybe and r[a]n off." She said that although she did not see the victim, her daughter did. She identified the license plate number of a red Jeep that left the scene. She stated that she saw the Jeep stop in the road, that someone got out, and that another car parked in front of the Jeep. She said that she heard gunshots and that the Jeep backed into a driveway and drove away. She did not know whether the victim and the shooter arrived in the Jeep.

         The female caller stated that she heard gunshots after a light-colored car parked in front of the Jeep. She did not know the make or model of the light-colored car but thought it might have been gold or tan. She did not know where the victim was located but said the Jeep drove down the hill, backed into her neighbor's driveway, and drove away. She said that the gunshots were not loud and that, based on the sounds, the gun might have been a .22-caliber. She said she heard three gunshots.

         The female caller said that "four, five, six guys" were initially in the road, that one or two men walked by her house, and that the Jeep and the light-colored car arrived. She stated that she saw one of the Jeep's doors open, that she heard gunshots, and that the Jeep and the car drove in opposite directions. She said everyone "scattered."

         The female caller stated that she saw a truck parked at the top of the hill and that she did not know why the truck was at the scene. She said that when her husband arrived home, he told her that African-American "kids" were fighting in the neighbor's yard. She stated that she walked to her door, that she saw four African-American men walking backward while looking at two other African-American men, and that she saw the Jeep arrive.

         Anna Gouge testified that she arrived home at about 3:45 p.m. on the day of the incident. Ms. Gouge stated that she saw a four-door gray car park at the house across the street, that three men got out of the car, and that the men chased the victim and the victim's friend around her neighbor's house. Ms. Gouge said that the men fought in the backyard and that a repairman instructed them to stop fighting and to leave the property. Ms. Gouge stated that the victim walked backward up a hill, that the three men followed the victim, and that the victim's friend ran in the opposite direction. She said that she heard the victim say, "It wasn't me, I don't have it, I didn't do it." She stated that the victim and the three men were African-American and estimated that all the men were in their twenties. Ms. Gouge stated that she heard the victim say, "It wasn't me, razor, it wasn't me." She said that two apartment complexes were located at the top of the hill and that she watched the victim and the three men walk toward the complexes and out of her view.

         Ms. Gouge testified that a woman in a red Jeep drove by Ms. Gouge's home but that she did not see the Jeep's passenger. Ms. Gouge said that the Jeep stopped at "Ms. Jean's" house at the top of the hill and that Ms. Gouge heard one gunshot. She stated that she did not see anyone get out of the Jeep but that she heard the gunshot seconds after the Jeep parked. She said that after the gunshot, she saw someone run from the woods and enter the Jeep. She said that the Jeep backed down the hill, into her neighbor's driveway, and drove past her home. Ms. Gouge said that although her mother called 9-1-1, she provided the Jeep's license plate number to her mother.

         Ms. Gouge testified that she walked up the hill and into the woods to check on the victim and that the victim lay on his side, "kind of curled." She did not recall seeing the gray car leave and said she did not see anyone run away. Sixteen photographs of the neighborhood were received as exhibits, and Ms. Gouge identified the neighborhood, the hill leading to the apartment complexes, an intersection at the top of the hill, the wooded area at the top of the hill, Ms. Jean's house, Ms. Gouge's driveway, and the backyard of the house across the street. Ms. Gouge stated that she saw a profile of the man she thought was the shooter, that the man was "husky," but that she could not identify him.

         On cross-examination, Ms. Gouge testified that she thought the shooter got out of the gray car, not the red Jeep. She stated that the husky man who left the gray car weighed more than 175 pounds and that he wore a collared red-and-white-striped shirt. She could not recall whether the husky man wore blue jean pants or shorts. She stated that she spoke with defense counsel before the trial, that counsel showed her a photograph lineup, and that she chose a man from the lineup she thought could have been the shooter. She said that she was not confident in her choice and that the man she chose was most like the husky man she saw during the incident. Ms. Gouge said she did not see any of the men with a gun. She said that she saw the husky man run from the woods and enter the Jeep and that she did not see who shot the victim.

         Diana Moore testified that she and her daughter saw a fight in the yard across the street at about 3:45 p.m. on the day of the shooting. Ms. Moore said that she walked to her door, that she "saw this little kid's head walking back and forth in front of my fence," and that "he was on the telephone and [I] didn't hear who or what or who he was talking to or anything." She said that she heard three gunshots and that the little boy ran away. She called 9-1-1.

         Ms. Moore testified that she saw the victim walk backward up a hill, that two men followed the victim, and that the victim held his hands in the air. She stated that the victim and the men walked to the top of the hill and out of her view and that she heard three gunshots. She said that she did not hear a conversation between the victim and the men.

         Ms. Moore testified that a light-colored car parked near Ms. Jean's house, that a person left the car, and that the person walked toward the wooded area at the top of the hill. She stated that a red Jeep, which was being driven by a woman, parked at the top of the hill, that an African-American man entered the Jeep, and that the Jeep backed into a neighbor's driveway and left the scene.

         On cross-examination, Ms. Moore testified that she did not know the men fighting in her neighbor's yard and that the light-colored car arrived during the fight. Ms. Moore stated that a large African-American man left the car, that the man wore a white tank top, and that he walked to the top of the hill after the victim. She said that the large man who left the car was the same man who entered the red Jeep after the shooting. She did not see anyone leave the Jeep after it parked at the top of the hill.

         On redirect examination, Ms. Moore testified, after reviewing her previous statement, that she saw a man leave the red Jeep, that the man followed the victim and the other men, that the men walked out of her view, and that she heard gunshots about one and one-half minutes later. Ms. Moore stated that the man returned to the Jeep and that the Jeep drove away. She said she could not identify the man who left the Jeep.

         On recross-examination, Ms. Moore did not recall whether the man who left the red Jeep before the shooting was the same man who entered the Jeep after the shooting. She did not recall what the man who got out of the Jeep looked like or what type of clothes he wore.

         Terry Price testified that he was carrying groceries from his car to his home on the day of the incident and that he saw men fighting across the street. Mr. Price stated that the victim walked backward up a nearby hill and that two men followed the victim. Mr. Price said that the victim's front pants pockets were inside-out and that the victim told the men that the victim only had five dollars and a razor. Mr. Price stated that the victim ran into the woods and out of his view. Mr. Price said that he heard one gunshot and ran toward the woods. He did not recall whether he saw any vehicles at the scene when the men followed the victim. Mr. Price said that, after he heard the gunshot, a light-colored car parked nearby, that the men got in the car, and that the car drove away.

         Mr. Price testified that he ran up the hill and into the woods, that he saw the victim's body, that he called 9-1-1, and that he stayed with the victim until the police arrived. Mr. Price said that he could not identify any of the people he saw during the incident other than the victim and that all of the men were African-American.

         On cross-examination, Mr. Price did not recall anyone leaving a silver car. Mr. Price was shown his police statement, and he testified that he did not recall the events detailed in the statement.

         Mr. Price testified that he was interviewed at the police station on the day of the incident. He acknowledged that his memory on the day of the interview had been clearer than it was at the trial. He did not deny telling the police that he heard two gunshots but said he did not recall the number of gunshots. He did not recall seeing anyone with a gun during the incident. He acknowledged that he told the police he saw three men leave a silver car and two men leave a red Jeep but that he did not recall this at the time of the trial.

         Jessica Foust testified that the victim was her boyfriend, that the victim never carried a gun, and that the victim smoked marijuana. Ms. Foust stated that she and Tabitha Gibbs were friends and that Ms. Gibbs and the Defendant were "together" at the time of the shooting. Ms. Foust said that she was with Ms. Gibbs and the Defendant on the day of the shooting, that the Defendant asked to use Ms. Foust's cell phone, and that the Defendant said he needed to speak with the victim. Ms. Foust stated that the Defendant asked Ms. Foust to drive him to the scene where the victim was located and that she drove her red Jeep "to where there was a lot commotion going on." Ms. Foust said that she saw men fighting the victim when she, the Defendant, and Ms. Gibbs arrived. Ms. Foust stated that the Defendant left the Jeep, that another man swung his fist at the victim, and that the victim fell on the ground. Ms. Foust said that the victim stood, jumped over a car, and ran into the woods.

         Ms. Foust testified that the Defendant ran into the woods after the victim and that she heard three gunshots. Ms. Foust stated that the Defendant entered her Jeep and instructed her to drive away. Ms. Foust said that she drove the Defendant to "South Wood" apartments. Ms. Foust stated that he walked to the passenger-side door, that he told her and Ms. Gibbs that he loved them, and that he asked them not to tell anyone about the incident. Ms. Foust said that she did not see or speak to the Defendant again. Ms. Foust stated that she learned during her police interview that the victim had died.

         Ms. Foust testified that the Defendant spoke to Jerrell Johnson on her cell phone as they left the apartment to drive to the scene and that the Defendant appeared "agitated." She stated that Ms. Gibbs sat in the passenger seat and that the Defendant sat in the backseat. Ms. Foust said that her son was also in the car, that she drove to Mr. Johnson and Blakely Graves's home, that Ms. Foust heard a "commotion on the next road," and that Ms. Foust left her son with Mr. Johnson and Ms. Graves before driving to the scene.

         Ms. Foust testified that the victim lived near the scene with "Wayne" and that the victim had been with Wayne on the day of the shooting. Ms. Foust stated that she spoke with the victim on Wayne's cell phone earlier in the day and that the victim did not indicate that he was in trouble. Ms. Foust said that, when she arrived at the scene, "Chico," Alan Hill, and Robert Caldwell were present. Ms. Foust stated that Brendon Ortiz[1] was known by the nickname "Chico," that Mr. Ortiz and Mr. Caldwell were Hispanic, and that neither man could have been mistaken as African-American. Ms. Foust said that Mr. Ortiz and Mr. Hill swung their fists at the victim and that the Defendant left the Jeep. Ms. Foust stated that the Defendant said to the victim, "Just fight my brother," that the Defendant appeared to be telling the victim to fight Mr. Ortiz, and that the victim would not fight.

         Ms. Foust testified that she saw Mr. Hill knock the victim on the ground and that she "was trying to get them to stop." Ms. Foust said that the victim stood, "jumped" over a gray car parked in an intersection, and ran into the woods. Ms. Foust stated that Mr. Hill, Mr. Caldwell, Mr. Ortiz, and the Defendant followed the victim but that the Defendant "ran all the way into the woods with him." Ms. Foust said that the other men did not follow the victim and the Defendant into the woods and that she did not see what happened in the woods. Ms. Foust did not recall any other people or vehicles at the scene. She said that she knew Robert Reed but that Mr. Reed was not present during the shooting.

         Ms. Foust testified that she did not see the Defendant enter the woods with a gun but that the Defendant had a gun when he returned to the Jeep. She said that she asked the Defendant whether he shot the victim and that the Defendant denied shooting the victim. She said that the Defendant appeared "agitated and nervous" as she drove him to the apartment. She stated that "we were all pretty upset" and that she and Ms. Gibbs cried because they had been scared and did not know what had happened. Ms. Foust said that before she drove away from the scene, she saw Mr. Caldwell, Mr. Hill, and Mr. Ortiz run from the woods.

          Ms. Foust testified that Mr. Reed had been murdered sometime after July 7, that Mr. Reed and the victim were not "enemies," and that she did not hear anyone say Mr. Reed was involved in the victim's shooting. Ms. Foust stated that she did not see the Defendant with a gun when she drove to the scene and that he had a gun when he returned to the Jeep after the shooting. Ms. Foust said that she had seen the Defendant with a gun previously, most recently the day before the incident. Ms. Foust stated that the Defendant "provoked the fight" after he left the Jeep.

         Ms. Foust testified that she drove to "Montgomery Village" after she dropped off the Defendant at South Wood, that Mr. Caldwell entered the Jeep when she drove to a stop sign, and that Mr. Caldwell drove because she was too emotional. She stated that police officers conducted a traffic stop and ordered her, Ms. Gibbs, and Mr. Caldwell out of the Jeep. Ms. Foust said that she was placed in a patrol car and that the officers periodically removed her from the car in order for witnesses to identify her as the driver of the Jeep.

         Ms. Foust testified that she was taken to the police station and that she did not know the victim was dead. She said that she was interviewed by the police and that she was afraid of the Defendant and of being in trouble with the police. Ms. Foust said that she was charged with being an accessory after the fact but that her case was dismissed after two years in exchange for her truthful testimony at the trial.

         Ms. Foust testified that she later learned why the shooting occurred. Ms. Foust stated she knew Martel Dunn, that Mr. Dunn and the victim were friends, and that Mr. Dunn's nickname was "Pooh." She said that she saw Mr. Dunn walk away from the scene as she drove toward it. She said that Mr. Ortiz, Mr. Caldwell, and Mr. Hill were shouting at the victim when she arrived and that the Defendant used an angry tone when he spoke to the victim and told the victim to fight.

         On cross-examination, Ms. Foust testified that she could not recall what the Defendant wore on the day of the incident. She stated that she spoke with the police on the day of the shooting and again on July 5. She said that she was familiar with the Defendant's carrying a gun and that the Defendant typically carried the gun on "his side." She stated that she generally knew whether the Defendant had a gun based on the way the Defendant walked but that sometimes she was unable to determine whether he had a gun depending on his clothes. Ms. Foust acknowledged telling the police during her second interview that because her son was inside the Jeep, she ensured the Defendant did not have a gun before he entered the Jeep. Ms. Foust stated that she was asked multiple times by the police whether the Defendant had a gun on the way to the scene and that she told the police the Defendant did not have a gun. She said that she looked to determine if the Defendant had a gun before he entered her Jeep and that he did not have a gun. She said that the victim tried to remove something from his pocket during the incident and that she heard the Defendant say to the victim, "[A]re you carrying a f ____ gun, dude? You got a gun on you? What are you reaching for?"

         Ms. Foust testified that she did not see what happened when the Defendant and the victim were in the woods and that she did not see who shot the victim. She said she had never previously seen the victim with a gun. She said that the Defendant denied shooting the victim and that she stood outside of her Jeep when she heard the gunshots.

         On redirect examination, Ms. Foust testified that she was not forthcoming initially with the police and that she went to the police station for a second interview after she learned of the victim's death. She stated that she did not intend to imply that the victim "was pulling a gun" from his pocket and that the victim tried to show he did not have anything in his pockets.

         Jerry Miller testified that he drove by the scene at about 3:45 p.m., that about eight to ten people stood in the road, that two men ran in front of his car, and that the men appeared to be fighting. Mr. Miller said that the two men ran into the woods and that he heard three gunshots. Mr. Miller called 9-1-1.

         On cross-examination, Mr. Miller testified that he thought he called before hearing the gunshots. A recording of the 9-1-1 call was played for the jury. In the recording, Mr. Miller stated that he heard at least three gunshots and that four men chased another man into the woods. Mr. Miller said a woman had stated that a man had been shot in the back of the head. The 9-1-1 operator transferred Mr. Miller's call "to the ambulance." Mr. Miller estimated that the victim was age eighteen and that the other men were probably teenagers. Mr. Miller said that the African-American men wore loose-fitting shorts. Mr. Miller stated that he walked into the woods and that the victim was not moving.

         Mr. Miller testified that his attention was drawn to one man and to the victim, who were fighting, that the man swung his fist at the victim, and that the victim "ducked" and ran. Mr. Miller said that he saw the man reach into his pocket and that the man wore light-colored shorts. Mr. Miller stated that he did not know what the man reached for and that he could not identify the man. On redirect examination, Mr. Miller stated that two or three days after the shooting he told officers he saw one man chase the victim into the woods.

         Knoxville Police Investigator Timothy Riddle testified that he saw the deceased victim lying in the woods when he arrived at the scene. Investigator Riddle said that he and other investigators spoke to approximately fifteen or sixteen people about the incident and that one witness identified a license plate number belonging to a red Jeep. He said officers stopped the Jeep about twenty minutes after the shooting.

         Investigator Riddle testified that a show-up identification was conducted to identify the Jeep's passengers. He stated that Ms. Foust, Ms. Gibbs, and Mr. Caldwell were taken to the police station and were interviewed. Investigator Riddle said that, based upon information provided by Ms. Foust, he determined he needed to speak with the Defendant. Investigator Riddle said the Defendant was a member of the Black Crime Family (BCF), which was a "rapping" organization that mentored "the youth." Investigator Riddle said that he attempted to identify BCF members in an effort to find the Defendant. Investigator Riddle said Ms. Foust, Ms. Gibbs, Mr. Ortiz, Mr. Caldwell, Mr. Hill, Mr. Reed, James Dean, and the Defendant were BCF members.

         Investigator Riddle testified that Mr. Ortiz never came to the police station for an interview, although Mr. Ortiz told an officer he would provide a statement. Investigator Riddle stated that he learned Mr. Ortiz drove a silver car and that he stopped the silver car driven by Mr. Ortiz on the day of the shooting. Investigator Riddle said that Mr. Ortiz was taken to the police station for an interview and that the Defendant became a suspect afterward. Investigator Riddle said that he interviewed Mr. Caldwell twice and that he learned additional information about the Defendant based upon these interviews.

         Investigator Riddle testified that he called a telephone number he thought belonged to the Defendant and that he asked BCF members to request the Defendant come to the police station for an interview. Investigator Riddle stated that he contacted the U.S. Marshal Service to conduct an emergency "phone ping" of the Defendant's cell phone and that he thought the Defendant no longer used the phone after the shooting. Investigator Riddle said the Defendant was arrested in Chattanooga on July 18, 2012.

         Investigator Riddle testified that he read the Defendant his Miranda rights and that the Defendant agreed to speak with him. Investigator Riddle said that the Defendant denied being in Knoxville on the day of the shooting and said he did not own a cell phone. Investigator Riddle said he told the Defendant that the Defendant's cell phone number appeared in Mr. Caldwell's and Mr. Ortiz's cell phone records in the days following the shooting. Investigator Riddle stated that the Defendant initially appeared "dumbfounded" as to why he was at the police station. Investigator Riddle said that the Defendant did not appear intoxicated and was well-spoken and intelligent. Investigator Riddle stated that the Defendant did not appear frightened or nervous and that the Defendant was cooperative. Investigator Riddle said that the Defendant's statement was video recorded. The video recording was played for the jury.

         In the recording, the Defendant stated that he was at a skating party in Chattanooga and that U.S. Marshals arrested him in a parking lot. Investigator Riddle read the Defendant his Miranda rights, and the Defendant signed a waiver of rights form. The Defendant stated that he went to Chattanooga on June 28, 2012, and that he appeared in court on June 29. The Defendant said that he had been in Knoxville periodically because he was trying to move his record label to Chattanooga. The Defendant stated that his charges in Chattanooga were for traffic tickets. The Defendant stated that he usually stayed at a house in East Knoxville when he was in Knoxville. The Defendant said that he was in Chattanooga on July 3, that he stayed with his aunt, and that he and his family had a cookout on July 4.

         Investigator Riddle stated that the Defendant had been indicted for the first degree murder of the victim. The Defendant said that he did not know the victim, that he knew Mr. Ortiz as "Chico," that he knew Mr. Caldwell, and that he did not know Mr. Reed or anyone known as "J.R."[2] The Defendant stated that he did not know Mr. Hill or anyone known as "Big Al." The Defendant said that he only associated with "Bmore" and the Defendant's brother in Knoxville. The Defendant said that he owned a mobile recording studio and that his brother stored the recording equipment. The Defendant stated that he knew Ms. Gibbs and that he and Ms. Gibbs had "talked."

         Investigator Riddle stated that the victim was shot in the head after an altercation occurred between the victim, Mr. Ortiz, Mr. Hill, and Mr. Caldwell. Investigator Riddle said that he was told Mr. Reed and Mr. Dunn, who was known as "Pooh," were also at the scene. Investigator Riddle stated that he knew the Defendant came to the scene in a red Jeep with Ms. Gibbs and Ms. Foust. The Defendant denied knowing about the victim's death. The Defendant acknowledged that he was a BCF member. Investigator Riddle stated that the victim had stolen marijuana from Mr. Ortiz, that BCF members had said the Defendant was at the scene, and that witnesses had identified the Defendant as the man who chased the victim into the woods. The Defendant said he was not involved.

         Investigator Riddle told the Defendant that cell phone records proved the Defendant was in Knoxville on the day of the shooting. The Defendant said that the cell phone number to which Investigator Riddle referred did not belong to him.

         The Defendant, however, admitted that he saw a fight when he arrived at the scene in the Jeep with Ms. Foust and Ms. Gibbs, that they left the scene in the Jeep, and that he did not know why the fight started. The Defendant said that he saw about twelve or fifteen men in the street fighting and that he only recognized Mr. Ortiz. The Defendant stated that he did not leave the Jeep or participate in the fight. The Defendant said that he went to the scene with Ms. Foust and Ms. Gibbs because he did not want them to go alone, that Ms. Gibbs received a telephone call about the fight, and that Ms. Foust and Ms. Gibbs wanted to see the fight because "they love to see attention and drama."

         Investigator Riddle stated that the first 9-1-1 telephone call was placed at 3:46 p.m., that the Defendant spoke by telephone with Mr. Ortiz at 3:32 p.m., and that the Defendant spoke with Mr. Ortiz again at 3:36 p.m. The Defendant said that he and Mr. Ortiz did not have a conversation, that he heard only background noises and voices, and that "it sounded ...


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