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Jury convicts Frazier again

Trial
Sep. 21, 2013 @ 12:40 AM

HUNTINGTON -- Robert Scott Frazier stood silent and without visible emotion Friday as yet another jury convicted him of second-degree murder in the Aug. 25, 2008, shooting death of girlfriend Kathryn Gale Smith.

The victim's aunt, Wanda Waiters, sat in the courtroom and spoke afterward, nearly overcome with emotion. Their family watched another jury convict Frazier of the same crime in July 2010, only to have that verdict overturned late last year by the state Supreme Court of Appeals.

Waiters hopes this decision will stick.

"I'm happy," she said. "I'm happy he's going back to jail ... I am so relieved."

Smith died in a bedroom at the couple's residence, located in Guyandotte's 500 block of Richmond Street. An eyewitness testified Frazier grabbed a shotgun and shot her in the face during a domestic dispute. The medical examiner told jurors the blast left a disfiguring wound and forced him to rely on fingerprints for a positive identification.

Cabell Circuit Judge Alfred Ferguson set sentencing for Oct. 2. State law provides for a maximum, 40-year prison sentence, which would be equal to the punishment Ferguson ordered in August 2010. He set sentencing for next month to allow for an updated presentence investigation and to give Smith's uncle an opportunity to attend. An illness prevented his attendance Friday.

Frazier remained virtually silent, only saying that he intends to seek a second appeal, as a deputy escorted him from the courtroom. His son sat a few rows behind his father and also provided little to no reaction afterward.

Jurors received the case about 12:30 p.m. Friday. It followed closing arguments and testimony from the defendant, both of which set before the jury a question as to whether the shooting was intentional.

Frazier testified it was an accident as the two struggled for the shotgun during their dispute.

"I didn't pull that trigger," he testified. "I did not intentionally pull the trigger. My finger might have hit it, but I did not intentionally mean to harm anybody."

Assistant prosecutors Jara Howard and Jason Spears strongly disagreed with Frazier's testimony. They accused him of blaming Smith and an eyewitness, as well as reminding jurors he left the scene and did not call 911 for help.

"If this was a woman he truly loved and he didn't mean to do this, he would have not been screaming at the top of his lungs," Spears told jurors in his closing argument. "Are these the actions of a man in love? No."

Howard, in speaking afterward, expressed satisfaction with the verdict, hoping the voice of 24 jurors, all reaching the same conclusion over two trials, should provide Smith's family closure and justice. Howard insisted in closing arguments their loved one never anticipated being killed.

"She never had a chance to struggle over that gun," she told jurors. "She never had a chance to scream ... Kathy Smith has no voice here (Friday), ladies and gentlemen. She speaks to us through the bloodstain analysis. It tells you she never saw it coming."

Frazier's attorneys, Jason Goad and Glen Conway, both joined their client in promising to appeal. Conway expressed disappointment with the verdict, but respected the jury's decision.

Goad declined comment about the verdict, but outlined two potential paths for appeal. One involved fingerprint tests that he claims prevented DNA analysis, while the second involved Ferguson's decision to seek a jury finding that his client used a firearm in commission of the murder. That finding will delay Frazier's first chance at parole eligibility, meaning he now must serve more than 13 years of a potential 40-year sentence as opposed a decade initially.

Conway speculated a successful appeal of the firearm ruling would only impact Frazier's sentence.

The state Supreme Court, by a 4-1 decision, tossed out Frazier's first conviction. It ruled that Ferguson erred in permitting the state's chief medical examiner to testify on behalf of his terminated deputy, Dr. Richard Belding. Prosecutors promptly corrected that issue Tuesday when it called Belding as its first witness.

Follow Curtis Johnson at Facebook.com/curtisjohnsonHD and via Twitter @curtisjohnsonHD.

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