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Murder conviction in 2008 killing overturned

Nov. 22, 2012 @ 12:00 AM

HUNTINGTON -- The state Supreme Court of Appeals has overturned the murder conviction of Robert S. Frazier.

The 46-year-old is charged in the Aug. 25, 2008, killing of Kathryn Gale Smith, 53. She died from a gunshot wound to the face during a domestic dispute at a residence in the 500 block of Richmond Street in Guyandotte.

The Supreme Court released its 4-1 decision late Wednesday afternoon, the last day of its autumn term of court.

The majority opinion determined the trial judge, Cabell Circuit Judge Alfred Ferguson, erred in allowing the state's chief medical examiner to testify on behalf of a terminated deputy, Dr. Richard Belding, who performed Smith's autopsy. The four justices concluded depending upon the agency's chief as its sole witness deprived Frazier's defense of a chance to cross-examine Belding on contradictions between his clinical summary and autopsy report.

Attorneys for the state conceded the lack of Belding's testimony amounted to a constitutional error, but maintained it was harmless and did not impact the jury's verdict. The defense disagreed, arguing Belding's contradictions bolstered Frazier's insistence the shooting was accidental as Frazier pulled the gun from Smith, who first threatened him.

In authoring new case law, Chief Justice Menis Ketchum delivered the majority opinion writing it is the burden of those benefiting from a constitutional error "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained."

"The State has failed to demonstrate that the autopsy findings and conclusions did not contribute to the verdict," Ketchum writes. "The prosecution did not meet its burden."

The reversal does not guarantee Frazier's immediate release from prison, however it does mean he will receive a new trial. News of that reality frustrated Smith's uncle, Henry Smith. He looked after the victim during her later years and spoke on her behalf at sentencing.

"I hate to go through all of this again," he said. "It's just horrible."

Justice Brent Benjamin delivered his opinion in dissent. Like the state, he described the error as harmless as it had no impact on the jury's verdict. He added any discrepancies in Belding's report were based upon information he gathered from a detective, who testified and was cross-examined as to Frazier's account of the shooting and provided jurors with the suspect's video-recorded confession.

"Nothing in Dr. Belding's autopsy report or clinical summary made it more or less likely that (Frazier) was guilty of an intentional killing," Benjamin writes. "The verdict did not hinge on any physical evidence."

Ketchum's majority opinion pointed to one response from the chief medical examiner, Dr. James Kaplan. The testimony came from cross-examination when Kaplan was asked about Belding's discrepancies.

"I can't tell you where they came from, ma'am. You would have to talk to Dr. Belding," Ketchum writes in recounting prior testimony.

In one discrepancy, Belding used his clinical summary to state Smith threatened Frazier, walked into a bedroom and seized the single-barrel shotgun. His autopsy report included a different finding, this one stating Frazier carried the shotgun and followed Smith into the adjacent room.

"The defendant was prevented from seeking the answer to these questions because the witness who made the statements/conclusions/findings was not brought before the court as a witness," Ketchum writes.

The majority opinion found no evidence that Belding was unavailable to testify. It further determined prosecutors knew about his termination for two months prior to trial and made no effort to secure his testimony. The majority also states prosecutors failed to notify the defense about Belding's absence until the first day of trial.

Due to its reversal on grounds that Frazier had no chance to cross-examine Belding, the majority did not address Frazier's claim that the court also erred in not disclosing Belding's notes and clinical summary. The state conceded those writings contained exculpatory information, but again described it as a harmless error and that prosecutors had no knowledge of the materials prior to Kaplan's testimony.

Frazier remained incarcerated Wednesday at Huttonsville Correctional Center. He had received a 40-year prison sentence, the maximum punishment for second-degree murder, but a punishment overturned by Wednesday's opinion. That charge and sentence will set the maximum parameters for any conviction at a new trial.