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State v. Frazier

Court of Appeal of Louisiana, Third Circuit

March 4, 2015

STATE OF LOUISIANA
v.
BRIAN LOWELL FRAZIER

Page 1267

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 314,826. HONORABLE PATRICIA EVANS KOCH, DISTRICT JUDGE.

AFFIRMED.

James C. Downs, District Attorney, Harold A. Van Dyke, III, First Assistant District Attorney, Alexandria, Louisiana, COUNSEL FOR APPELLEE: State of Louisiana.

Paula C. Marx, Louisiana Appellate Project, Lafayette, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT: Brian Lowell Frazier.

Court composed of Marc T. Amy, John E. Conery, and David Kent Savoie, Judges.

OPINION

Page 1268

[14-1132 La.App. 3 Cir. 1] CONERY, Judge.

Defendant, Brian Lowell Frazier, was indicted for the second degree murder of Jarvis D. Dwellingham, a violation of La.R.S. 14:30.1. A jury found Defendant guilty of the lesser included offense of manslaughter, a violation of La.R.S. 14:31. After the trial court denied Defendant's motions for new trial and for post-verdict judgment of acquittal, it sentenced Defendant to twenty years at hard labor with credit for time served. Defendant filed a motion to reconsider his sentence, and the trial court denied the motion. Defendant now appeals his conviction and sentence.

On appeal, Defendant argues that the evidence established that he was acting in self-defense, the homicide was justified, and the evidence did not support his conviction. Additionally, Defendant contends that he should have been granted a new trial based on an incorrect jury instruction, or, alternatively, he should get a new trial because ineffective counsel failed to object to the incorrect instruction. Further, Defendant contends that the trial court erred by instructing the jury it could consider flight as relevant evidence when the evidence did not establish his flight. Finally, Defendant argues that his sentence is excessive. For the reasons set forth below, we find that Defendant's assignments of error lack merit and, therefore, affirm Defendant's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Defendant, Brian Frazier, and the victim, Jarvis Dwellingham, were both residents of the Goodwill Apartments, subsidized housing in South Rapides Parish. Defendant previously had issues regarding the ownership or use of the undesignated and unassigned parking spots in front of the Goodwill Apartments, one of which

Page 1269

resulted in a police report, and all of which were admitted by Defendant's girlfriend while testifying at trial.

[14-1132 La.App. 3 Cir. 2] On March 13, 2013, the victim was outside of his apartment tending to his vehicle which, according to Defendant, was double parked in front of their adjacent apartments. Defendant testified at trial that when he asked the victim to move his vehicle within the lines so that Defendant's girlfriend could park in front of the apartments, the victim smiled and went into his own apartment. Defendant claimed that he remained in his apartment with the door open, but with his screen door locked. Defendant testified that he was upset, pacing back and forth in his apartment, mumbling angrily to himself, and told his friend over the phone, " I'm just tired of these bitch ass [n ] not giving anybody any respect." Shortly thereafter, Defendant heard the victim outside saying something in an agitated tone, loud enough for Defendant to hear inside of his apartment. Defendant further testified that he then went outside and the victim confronted Defendant right outside of Defendant's apartment, grabbing Defendant by the neck. Defendant stated that he and the victim " clashed like rams." Defendant claims that he did not enter the altercation with a weapon and just repeatedly " punched" the victim, trying to get the victim off of him. Defendant claimed that at some point he believes that he took something sharp from the victim that resulted in a cut on Defendant's hand.

Defendant testified that the victim then released him and walked away from Defendant, passing between their two vehicles. Defendant went back into his apartment, where he grabbed his keys and inhaler and proceeded to leave the Goodwill Apartments. Defendant stated that it was only when he was leaving his apartment and locking the door did he realize that there was " [blood] all over the door," which Defendant attributed to his " bleeding and dripping" hand. Defendant further testified that as he passed between his and the victim's vehicles while [14-1132 La.App. 3 Cir. 3] leaving the apartments, he saw something on the ground by his vehicle. He picked the item up and as he left the premises, Defendant testified that he saw the victim talking to someone in the parking lot. Further, Defendant stated that it was not until he was halfway to his friend's house in Alexandria that he noticed he had a punch dagger[1] with a matching sheath on his lap. Defendant testified that the sheath had been the thing he had picked up on the ground before entering his vehicle and exiting the apartment complex. Defendant believes that at some point during the altercation with the victim, Defendant disarmed the victim, obtaining the punch dagger, which resulted in the cut on his hand and the injuries to the victim. Defendant stated that he hid the punch dagger under a seat in his vehicle because " [he] really didn't want to get out of [his] car with any type of weapon in [his] hand. [He] didn't want to be accidentally shot, tased or anything like that."

Glenn Hall, an off-duty police officer, was entering the Goodwill Apartments when Defendant was exiting and noticed that Defendant had scratches on his face. Mr. Hall then saw the victim full of blood and radioed for assistance. Mr. Hall testified that he also called in a BOLO (Be On The Lookout) for Defendant, describing a

Page 1270

light skinned male driving a white car with scratches on his face. Soon thereafter, after being observed travelling at least eighty to ninety miles an hour by police officers, Defendant was pulled over just as he entered Alexandria, where he told officers that he had been in an altercation with a man at his apartment complex over parking spaces. Defendant was then brought to the Rapides Parish Sheriff's Office, where he was questioned about the altercation. [14-1132 La.App. 3 Cir. 4] Defendant was questioned extensively and continuously claimed that he did not remember anything and did not use a knife, a statement that Defendant admitted was a lie at trial. After the initial stop, Defendant repeatedly told the police officers to check his pocket knife for any evidence that he used it in the altercation, but he never mentioned the punch dagger. However, as questioning came to a close, Defendant admitted that the punch dagger was hidden under the back seat of his vehicle. Detective Ronnie Rollins with the Rapides Parish Sheriff Department testified that he arrived on the scene shortly after Defendant was pulled over. Detective Rollins testified that prior to obtaining a search warrant, the vehicle was sealed. Once the search warrant was obtained, Detective Rollins had to manipulate the latches of the back seat to get the back seat out. Once the back seat was removed, the Blackhawk Punch Dagger with the matching sheath was discovered.

Dr. Christopher Tape, a forensic pathologist, testified that the victim had sixteen stab wounds and three to four scratches on his body, and the autopsy report introduced into evidence had diagrams of the locations. Dr. Tape testified that the stab wounds indicated that the knife had been sharpened on both sides of the blade, consistent with that of a punch dagger. The majority of the stab wounds, a total of nine in a cluster, were located on the left lower back of the victim. Dr. Tape testified that Defendant died from the stab wounds and that the wound to the upper left chest that resulted in a perforation of the left lung and a fractured rib was the " immediate or more significant wound; the other would have been fatal eventually, but not immediately."

Dr. Jessica Esparza testified that she performed DNA analysis on items obtained from the victim and Defendant. The blood of both the victim and Defendant was found on Defendant's shirt. Further, Dr. Esparza testified that the [14-1132 La.App. 3 Cir. 5] blood of Defendant was found on the punch dagger as well as Defendant's apartment screen door.

Defendant was charged by a bill of indictment with one count of second degree murder, a violation of La.R.S. 14:30.1. On January 31, 2014, the jury returned a verdict of guilty on one count of manslaughter. On March 24, 2014, the trial court sentenced Defendant to serve twenty years at hard labor, with credit for time served. On April 2, 2013, Defendant filed a motion to reconsider sentence, arguing that the trial court inadequately considered the mitigating factors of La.Code Crim.P. art. 894.1. The motion to reconsider sentence was denied without a hearing.

Defendant filed a motion in this court on November 25, 2014, arguing the trial court's April 28, 2014 order merely denied the request for a hearing, and no order either granting or denying the motion itself was ever issued. This court signed an order on December 4, 2014, denying the motion.

Defendant now timely appeals, asserting five assignments of error. For the reasons set forth below, we find Defendant's assignments of error lack merit. We affirm Defendant's conviction and sentence.

Page 1271

ASSIGNMENTS OF ERROR

On appeal, Defendant assigns the following as error:

1. The evidence established that Brian Frazier was acting in self-defense when he killed Jarvis Dwellingham in response to being attacked by Dwellingham just outside his front door. Accordingly, the homicide was justified, and a ...

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