Recardo Frazier a/k/a Recardo Randell Frazier a/k/a Ricardo Frazier v. State of Mississippi

State of Mississippi criminal defense lawyer represented the Defendant charged with first-degree murder with a firearm enhancement.

Frazier owned and operated a construction company. Sometime between 2012 and

2014, Ellis Pittman hired Frazier to complete construction projects at his home and law

office. At some point during the construction work on Pittman's home, Pittman "failed to

pay [Frazier] for the work that had been done[,]” which resulted in Frazier placing a lien on

Pittman's property.

¶3. On August 1, 2014, Pittman sued Frazier for compensatory and punitive damages and

threatened to sue him in federal court under the Fair Debt Collection Practices Act. On

August 28, 2014, Frazier responded to the complaint and asserted a counterclaim for punitive

damages due to Pittman's "bad faith.” On June 26, 2015, Frazier attended a deposition

related to the litigation. The deposition took place at Pittman and Associates PLLC

("Pittman's law office”) located in Clarksdale, Mississippi. Dr. Kushna Damallie, who had

previously hired Frazier for a construction project on his home was the individual being

deposed. The accounts of all witnesses present indicated that the deposition was a "routine”

and "normal” deposition. There were no raised voices, no arguments, and no heated

discussions. When the deposition ended and as the people present were collecting their

documents, Frazier pulled out a .45-caliber pistol and shot Pittman numerous times. Pittman

died from those gunshot wounds.

¶4. On December 9, 2015, a Coahoma County grand jury indicted Frazier for first-degree

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murder1

with a firearm enhancement2

(Count I); possession of firearm by a felon3

(Count II);

possession of stolen firearm4

(Count III), and carrying a concealed weapon5

(Count IV). The

first trial occurred February 25-26, 2020. During the trial, the court granted Frazier's motion

for a directed verdict on the possession-of-a-stolen firearm charge (Count III), and that count

was dismissed. After hearing from all the witnesses and considering all the evidence, the

jury convicted Frazier of only two of the three submitted counts: possession of a firearm by

a felon (Count II) and carrying a concealed weapon (Count IV). The jury was unable to

reach a verdict as to Frazier's first-degree murder charge (Count I), and the court therefore

ordered a mistrial as to that charge. On February 28, 2020, Frazier was sentenced to serve

a term of ten years in the custody of the Mississippi Department of Corrections for

possession of a firearm by a felon (Count II) and to serve a concurrent term of five years in

custody for carrying a concealed weapon (Count IV). These convictions and sentences were

not appealed.

¶5. After the mistrial, a second trial occurred on August 8-10, 2022, on the first-degree

murder charge (Count I). At trial, the State called Marquell Jenkins, who testified that she

worked as a receptionist at Pittman's law office. Jenkins testified that on June 26, 2015,

Frazier, Pittman, Frazier's attorney William Luckett, Pittman's attorney Melvin Miller, Dr.

1

Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014).

2

Miss. Code Ann. § 97-37-37(2) (Rev. 2014).

3

Miss. Code Ann. § 97-37-5 (Rev. 2014).

4

Miss. Code Ann. § 97-37-35(1) (Rev. 2014).

5

Miss. Code Ann. § 97-37-1 (Rev. 2014).

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Damallie, and a court reporter Joyce Redmond, came to the office for a deposition. Jenkins

testified that the deposition "was held in the conference room on the bottom floor.” Jenkins

recalled that at approximately 4:30 p.m. she "heard a gunshot” followed by "several more

gunshots.” She called the police. This call to the police was played to the jury and entered

into evidence. On cross-examination, Jenkins admitted that she did not physically see Frazier

shoot Pittman.

¶6. The State called Mark Haynes. Haynes testified that he was a Clarksdale police

officer who responded to a "[a] person being shot” at Pittman's law office. He arrived at the

scene in "less than two minutes” and entered the building with Investigator Brad Hillhouse

and another officer. Haynes testified that he saw Pittman "in the conference room on the

floor.” Haynes stated Miller and Redmond were also in the room. Haynes testified that there

was "paper strewn around” the room and that Miller was on the ground "working on

[Pittman] or comforting him.” Pittman was lying "down beside the table on the left side of

the room.” Haynes testified he saw "shell casings” and a gun on the floor.6

Haynes testified

he later learned that Frazier had "run out the back door.”

¶7. Milton Williams was also called to testify. Williams was a Clarksdale police officer

who responded to the scene of the crime. When Williams arrived at Pittman's law office, he

searched the scene and discovered a .45-caliber gun in a dumpster located in the back parking

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This gun was Pittman's .380-caliber pistol. The uncontradicted testimony indicated

this gun was never fired.

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lot.7

Williams showed the gun to Investigator Hillhouse, who collected it into evidence.

¶8. The State called Brad Hillhouse. Hillhouse was an investigator for the Clarksdale

Police Department and the first officer to arrive on the scene. Hillhouse testified that he saw

and spoke to Pittman, who "advised [him] that [Frazier] ran out the back door.” Hillhouse

recalled that Pittman "was [lying] [on] the floor to the left of the conference table.”

Hillhouse also testified that Pittman had a ".380 caliber” gun in his hand, and Hillhouse "told

[Pittman] to drop the gun.” Hillhouse testified that he did not see any other weapons in the

conference room at that time.

¶9. Hillhouse explained that he checked the back of the building and then "proceeded

down the alley . . . because [he] had information that [Frazier's] vehicle was parked at

[Luckett's] law office.”8

He testified that he returned to the scene because Williams

informed him he had found a Springfield Armory .45-caliber pistol "inside the garbage can

outside [Pittman's] law office.” Hillhouse retrieved the weapon and "placed it inside of [an]

evidence bag[.]” Hillhouse testified that he ultimately located Frazier's vehicle in the

parking lot of Luckett's office but did not find Fraizer. On cross-examination, Hillhouse

testified that when he retrieved the .45-caliber gun, he observed that the gun was empty, and

there were no remaining bullets in the gun.

¶10. The State next called Charles Sledge, who was an investigator for the Clarksdale

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The uncontradicted testimony indicated the .45-caliber gun was the gun Frazier

fired at Pittman.

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Luckett's law office was located at 143 Yazoo Avenue in Clarksdale. Pittman's

law office was located at 123 Sharkey Street in Clarksdale. Luckett testified Pittman's law

office was located "about two blocks” away from Luckett's law office.

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Police Department. Sledge responded to the shooting at Pittman's law office at "4:36, 4:37.”

Sledge entered the building and saw Pittman lying on the floor "in the conference room” with

a .380-caliber pistol "beside him” and "shell casings laying on the floor.” Sledge testified

that he "started taking photos, collecting evidence.” The .380-caliber pistol was entered into

evidence. Sledge testified he collected five shell casings, and they were all for a .45-caliber

pistol. There were "[n]o casing[s]” that were for a .380-caliber pistol. On crossexamination, Sledge admitted that the .380-caliber pistol was loaded. A bullet from the pistol

was entered into evidence.9

¶11. Dr. Damallie was called to testify. Dr. Damallie was the individual being deposed on

the day of the shooting. He testified the deposition lasted approximately one hour. He

confirmed there were no harsh tones, arguments, or raised voices during the deposition. He

explained that after the deposition, Luckett and Frazier were leaving the room when he heard

a shot and saw Pittman fall to the ground. Frazier left the room immediately after the shot.

Dr. Damallie admitted he left the conference room and went into an office until the police

arrived. On cross-examination, he admitted he did not see Frazier with a gun.

¶12. Luckett's testimony from the previous trial was read into evidence.10 On June 26,

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This bullet was a live round (meaning never fired) taken from the barrel of the .380-

caliber gun for purposes of the investigation.

10 As previously stated, the first trial occurred on February 25-26, 2020, and a

mistrial was declared for the first-degree murder charge when the jury failed to reach a

verdict. Luckett passed away before the second trial, so his prior testimony was admissible

under Mississippi Rule of Evidence 804(b)(1). The transcript indicated that the judge and

the attorneys read their respective parts, and Beverly Harris read Luckett's part.

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2015, Luckett and Frazier traveled together11 to Pittman's law office to attend the deposition

of Dr. Damallie. Luckett testified that Pittman deposed Dr. Damallie, and Luckett had the

opportunity to cross-examine Dr. Damallie. The deposition lasted "about 30, 40 minutes

long[.]” Luckett testified there was "no tension” and "no emotion displayed,” and the

deposition "proceeded as usual.” Luckett stated the deposition "never evinced any kind of

emotion or tension,” and there was "nothing extraordinary about it.” Luckett "didn't detect

any ill will” and described the events as "just a routine kind of deposition in a civil case.”

Luckett testified he had "been in a lot of depositions in 42 years . . . and [he had] seen a lot

of emotions come forth during testimony, and this one just didn't have any of that in [his]

view.”

¶13. Once the deposition was over, Luckett indicated to Redmond that he "didn't have any

further questions[.]” Luckett testified he looked at Frazier and "g[a]ve him a nod like,

[']let's go['].” Luckett thought Frazier was "following [him] out” when he walked out of the

conference room's "double doors” toward a second door that led to the outside parking lot.

Luckett testified that "just as [he] was about to open that door . . . [he] heard what sounded

like a gunshot.” Luckett heard "one shot” and then heard a "quick succession of more shots.”

The "next thing [he] knew, [he] was upstairs in that building.” Luckett testified he "didn't

know what was going on or who was doing what.”

¶14. Luckett testified he "looked out of a back window” and saw Frazier "walking

hurriedly” in a "westerly direction” toward Luckett's office. The police arrived shortly

11 Luckett testified that Frazier left his vehicle near Luckett's office, and Luckett

drove himself and Frazier to the deposition.

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thereafter. Luckett went downstairs and went into the conference room and observed that

"Miller was down tending to [Pittman].” Miller and Pittman were on the "left side of the

conference table, sort of where they had been seated before, but [Pittman] was down on the

floor.” Redmond was also in the room. Luckett observed that the room was in "disarray”

and saw a "pistol on the floor.”12 Luckett recalled Pittman was conscious and "somewhat”

speaking. Luckett testified he "did not” see a gun on Pittman's person and "did not” see

Pittman make any motions toward a pistol. Luckett testified he "did not” see a weapon on

Frazier that day. On cross-examination, Luckett testified that he felt the "deposition was

really more favorable to [Frazier] than it was to [Pittman].” Luckett further testified the

shooting was a "complete surprise” to him. After Luckett's testimony from the first trial was

read to the jury, Frazier proffered a portion of Luckett's testimony and exhibits pertaining

to the civil litigation between Frazier and Pittman. The court allowed the testimony to be

proffered but did not allow it to be presented to the jury as the court found it was

"irrelevant.”

¶15. The State then called Joyce Redmond. Redmond was the court reporter present during

Dr. Damallie's deposition. Redmond testified that after the deposition, Luckett and Frazier

"left the room” while she, Pittman, and Miller "were sorting through the exhibits[.]”13 All

three individuals were standing, with Pittman to the right of Redmond and Miller to the right

12 This gun was not the one Frazier fired during the subject incident.

13 There is some dispute in the testimony as to whether Frazier actually ever left the

room. It is clear from the testimony that he began to get up and follow Luckett out of the

conference room but at some point returned to the conference table and started shooting.

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of Pittman. Redmond testified Frazier then "came in” and "slid[ ] over the table,” and she

saw him "shooting his gun” at Pittman. Redmond recalled she heard "two or three”

gunshots. Redmond testified she "hit the floor” and "crawled over against some windows”

to "get out of the way.” Redmond testified Pittman "went down.” Eventually, Frazier left

the room, and Redmond "start[ed] hollering for help.”

¶16. On cross-examination, Redmond indicated she did not notice any odd behavior by

Frazier when he first came to the deposition. When asked if she anticipated any heated

arguments or discussions, Redmond responded, "[N]ot at all.” She further indicated that "in

40 years of being a court reporter, [she had] seen what a contentious deposition look[ed]

like,” and "[t]his was not one of those depositions[.]”

¶17. Melvin Miller, the attorney who worked with Pittman at the time of the shooting, was

called to testify. Miller described the "tone” of the deposition as "normal.” He explained

there was no arguing during the deposition. Miller testified that at no point were any

questions ever asked of Frazier. Miller testified he was seated next to Pittman during the

deposition, and Luckett was seated next to him while Frazier was across the table. They were

all close to each other, and he insisted he would have heard if Pittman had ever made a

statement to Frazier. At the end of the deposition, Luckett "got his papers together and

left[.]” Pittman and the court reporter were "getting documents together” and then heard a

loud noise. Pittman dove under the conference table. Miller testified that he saw Frazier

"holding a gun” and shoot under the table. Miller told Frazier, "[P]lease don't kill anybody.”

Miller testified he saw Frazier shoot some more "rounds” and then Frazier ran out of the room. After Frazier left, Pittman asked Miller to "pray” for him and call his wife.

¶18. The State called Dr. Mark LeVaughn, a physician who "specializ[ed] in forensic

pathology employed by the medical examiner's office.” In 2015, Dr. LeVaughn was the

chief medical examiner for the State. Dr. LeVaughn was tendered and accepted as an expert

specializing in the field of forensic pathology. He testified that his office performed

the autopsy on Pittman. Dr. LeVaughn testified he did not actually perform the autopsy, but

he conducted his own independent examination or determinations with regard to the manner

and cause of death. Dr. LeVaughn testified that Pittman had "two entry gunshot wounds that

were identified.” He testified that "there was an entry wound to the lower lateral, or outside,

of the left side of the back. And then there was another entry wound on the left buttock.”

Dr. LeVaughn testified that "[i]n [his] opinion, the cause of death of . . . Pittman [was]

multiple gunshot wounds.” He further opined that the manner of Pittman's death was

homicide.

¶19. The State called Byron McIntire, who was employed by the Mississippi Forensic

Laboratory as a "firearms and tool mark examiner.” McIntire was accepted as an expert in

the field of firearm and tool mark examination. McIntire testified he examined "striations

and marks” to determine if certain shell casings or projectiles were shot from a particular

weapon. McIntire testified he received and tested five .45-caliber shell casings collected

from the crime scene. The .45-caliber pistol recovered from the dumpster was entered into

evidence. The .380-caliber pistol from Pittman was also entered into evidence. McIntire

opined that after the testing, he determined to a "reasonable degree of scientific certainty”

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the shell cases from the crime scene and projectile were fired by the .45-caliber pistol that

had been collected from the dumpster.14



¶20. During a jury instructions selection hearing, Frazier proposed several manslaughter

instructions. The court refused all the proposed manslaughter instructions due to a lack of

sudden provocation as required under Mississippi Code Annotated section 97-3-35 (Rev.

2014). The jury convicted Frazier of first-degree murder. Frazier was sentenced to serve a

term of life imprisonment in the custody of the Mississippi Department of Corrections. On

August 12, 2022, Frazier filed a motion for judgment notwithstanding the verdict or,

alternatively, a new trial. In that motion, Frazier argued the "[c]ourt erroneously refused to

offer a jury instruction on [m]anslaughter [and] . . . excluded testimony and exhibits

contained in the proffer of witness [Luckett], which would have established clear basis for

a heat of passion instruction.” Frazier also maintained the jury verdict was against the weight

of the evidence. On August 16, 2022, the court denied the post-trial motion. Frazier now

appeals, asserting his murder conviction should be reversed and remanded for a new trial.

In the alternative, Frazier argues this Court should order the trial court to hold an evidentiary

hearing.

S