Butler v. State, SC95158.

• Citation: 842 So.2d 817
• Decision Date: 03 April 2003
• Docket Number: No. SC95158.,SC95158.
• Parties: Harry BUTLER, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

842 So.2d 817

Harry BUTLER, Appellant, v. STATE of Florida, Appellee.

No. SC95158.

Supreme Court of Florida.

April 3, 2003.

James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

We have on appeal Harry Butler's conviction for first-degree murder and his sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm Butler's conviction and his sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of March 13, 1997, or early morning hours of March 14, 1997, Leslie Fleming (Fleming), also known as Bay, was stabbed multiple times and asphyxiated by her former boyfriend, Harry Butler (Butler). Shawna Fleming (Shawna), Leslie's sister, discovered Fleming's body at about 7:15 a.m. on the morning of March 14 when LaShara Butler (LaShara), the couple's six-year old daughter, opened the apartment door for Shawna. According to LaShara's trial testimony, on the night before the body was discovered, she had been sleeping with her mother when her father entered the bedroom, picked her up, and took her to her own room. LaShara testified that she saw his face during this process. LaShara also stated she heard her mother say, "Stop," saw her father's leg pinning down her mother's leg, and heard her mother screaming as though she were being hurt. Officer Scott Ballard, one of the first officers on the scene, testified that on the way to the police station, LaShara said, "My daddy hurt mommy. I heard him yelling at her."

Lola Young, a long-time neighbor of Fleming's who had also known Butler for some time, testified she saw Butler hiding in the bushes near Fleming's apartment between 3:30 and 4 a.m., around the same time as the murder. She also stated that soon after seeing Butler, she saw a blue car speed through the housing complex, stop abruptly, pick up Butler, and speed off. Latwanda Allen (Allen) testified that she, Butler and Martisha Kelly (Kelly) are cousins. Allen said Kelly told her Butler killed Fleming. At trial, Kelly denied having made the statement.

Detective Steffens testified that Kelly stated she went by Fleming's apartment the morning of the murder, looked through a window and noticed the apartment was in disarray. Steffens also testified he questioned Butler, and Butler denied any involvement in the murder. During the interview, Steffens noticed superficial cuts on Butler's hands, which Butler explained he received from falling off a bicycle and from a broken bottle. A broken beer bottle was found on the floor of Butler's room.

Detective Green testified Kelly told him the murder weapon could be found in a dumpster near a food store where a pair of blue shorts, a white T-shirt, a pair of underwear, a towel, and a pair of tennis shoes having no laces were eventually found. However, no weapon was recovered from this location. Dr. Jeannie Eberhardt, a forensic scientist specializing in DNA serology, testified she found the presence of blood on the white T-shirt, but she was unable to confirm a DNA profile of the blood. Blood stains found on the denim shorts, towel, and boxer shorts were also tested, with the same result. The blood was either of an inadequate amount or degraded. The dyes of the denim shorts inhibited DNA testing. However, testing of the sneakers revealed a DNA profile consistent with that of the victim.

Shawna testified that Fleming ended her relationship with Butler several months before the murder. On March 9 Butler moved out of the apartment at Fleming's request. He was present, however, in the apartment on March 11 when Shawna visited her sister. Fleming told Shawna to leave and call the police. One of the officers who arrived on the scene observed red marks on Fleming's back and an injury to her shoulder. Butler was arrested, but bonded out the next evening. Two days after the incident with the police, Butler was again seen at Fleming's apartment. An employee of a cable company, John Dosher, was removing a cable box from the residence. He indicated that Fleming and Butler seemed affectionate with no animosity between them.

Lakisha Miller (Miller), Butler's cousin and Fleming's best friend, who was known as Red, testified she spent the night with Fleming, at Fleming's request, on the night of March 12. She said she last spoke with Fleming at 8 p.m. on the night of March 13. Miller testified that Butler did not like her and that he was upset over the breakup with Fleming. She also said Butler was upset because Fleming was having an affair with Adonis Hartsfield.

Terry Jackson, Butler's coworker and acquaintance for many years, testified that he gave Butler a ride the day before the murder. During that ride, Butler said he was going to kill Bay (Fleming) and Red (Miller).

Dennis Tennell (Tennell) testified that he shared a motel room with Butler on the night of the murder and that he allowed Butler to borrow a pair of his Nike sneakers the next morning because Butler's shoes were wet. Tennell identified the sneakers found in the dumpster as Butler's. Butler testified he and Tennell attended a party and arrived at their room around 2 a.m. Tennell left for an hour on a "dope run." At some time during the night, Butler noticed his blue and white Converse sneakers were missing and when he asked Tennell where they were, Tennell responded, "I'm on a mission with them." Butler then borrowed Tennell's black Nikes, which Butler was wearing when arrested. As Butler and Tennell left their room, the police confronted them. Tennell ran away and Butler was taken to the police department for questioning. Butler testified he did not know Fleming was dead at this time.

At the penalty phase, several family members, including Butler's father, Junior Butler, testified concerning Butler's early life. Prior to the death of his mother, Butler lived with his mother and father, with Junior Butler supporting the family on fifty dollars a week. Junior Butler indicated that he was tried and acquitted of the murder of Butler's mother when Butler was eight years old. After his mother's death, Butler went to live with his grandmother. Butler's sister, Sandra Butler, testified Butler protected her as a child. When their grandmother died, Junior Butler again took custody of Butler and his siblings. When Butler reached age eighteen, he moved out of his father's house.

On June 28, 1998, the jury recommended Butler be sentenced to death by a vote of eleven to one. The trial court denied Butler's motion for new trial at a hearing on August 7, 1998. On November 2, 1998, the trial judge conducted a Spencer¹ hearing during which the defense presented additional mitigating testimony from a psychiatrist, Dr. Michael Maher. Dr. Maher testified that he interviewed Butler concerning his use of drugs and his psychiatric background. Butler informed him that he used a lot of cocaine on the night of murder, but he also said he did not commit the murder. Dr. Maher indicated that one of the effects caused by the use of cocaine was irrational, repetitive actions. He opined that the number of stab wounds in this case suggests this type of behavior. Dr. Maher further opined that a child whose mother dies as a result of violence faces a great risk of participating in violence to resolve conflicts, especially when this factor is coupled with other dysfunctional social activities, such as drug use.

On January 11, 1999, the trial judge concurred with the jury recommendation and sentenced Butler to death. The trial judge found one aggravating circumstance, that the murder was heinous, atrocious, or cruel (HAC). The defense requested two statutory mitigating circumstances, that the defendant was acting under the influence of emotional and mental disturbance and that his capacity to appreciate the criminality of his act was impaired. However, the trial judge found no statutory mitigating factors and four nonstatutory mitigating factors including: (1) Butler was reared without his natural mother (some weight); (2) Butler is a loving and good son (some weight); (3) Butler is well thought of by neighbors and coworkers (slight weight); and (4) Butler has a long-term substance abuse problem (slight weight). Butler filed a timely notice of appeal on February 9, 1999.

In this appeal Butler claims the trial court erred by: (1) permitting the State to elicit testimony concerning prior acts of violence allegedly committed by the defendant; (2) permitting an unqualified expert witness to testify concerning DNA evidence; (3) denying the defense motion for a new trial following the discovery of a probation violation report on one witness that was not disclosed by the State; (4) instructing the jury that the only proposed statutory aggravating circumstance had been established by the evidence; (5) failing to consider a statutory mitigating circumstance proposed by the defense during the penalty phase; and (6) imposing a death sentence that is excessive, disproportionate, and cruel and unusual punishment under the United States and Florida Constitutions.

We deny relief on all of Butler's claims and affirm both the finding of guilt and the sentence of death.

ISSUES

Prior Acts Of Violence

Butler first argues the trial court erred in allowing the prosecutor to ask him, Detective Marvin Green, and Theodore Dallas questions related to prior domestic violence allegations against him. Contending that this evidence was similar fact evidence, Butler argues this evidence should have been excluded because it was used only to show Butler's propensity to commit the crime charged or his bad character and because the probative value of this evidence was outweighed by the prejudice. See §§ 90.403-90.404, Fla. Stat. (1995).

On April 30, 1997, the State filed a notice of intent to use evidence...