Butler v. State

• Decision Date: 05 February 2001
• Docket Number: No. S00A1425.,S00A1425.
• Citation: 273 Ga. 380,541 S.E.2d 653
• Parties: BUTLER v. The STATE.
• Court: Georgia Supreme Court

541 S.E.2d 653

273 Ga. 380

BUTLER v. The STATE.

No. S00A1425.

Supreme Court of Georgia.

February 5, 2001.

Jones, Osteen, Jones & Arnold, Linnie L. Darden III, Hinesville, for appellant.

J. Thomas Durden, Dist. Atty., James S. Archer, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Adam M. Hames, Asst. Atty. Gen., for appellee. HINES, Justice.

Jesse Butler appeals his convictions for malice murder, three counts of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Samuel Maurice Tucker II, the wounding of Shalawn Shellington and the burglary of her residence, and the robbery at gunpoint of Tucker, Octavia Shellington, and Pascal Greene. Butler challenges the sufficiency of the evidence; the admission of certain photographic and other physical evidence; the sufficiency of the State's showing of alleged similar conduct; the proffer of testimony of a State's witness on the ground that such testimony was perjured; certain cross-examination by the State; the State's closing argument; the court's failure to grant a mistrial because of alleged improper prosecutorial comment; the court's recharge to the jury; and the effectiveness of trial counsel. Finding the challenges to be without merit, we affirm.¹

In the early morning hours of December 5, 1995, Butler and Ricky Swain went to the home of Shalawn Shellington and Greene, a known drug dealer. The men approached Shalawn's sister, Octavia Shellington, and her friend, Tucker, sitting in a parked car outside the home. Butler asked for a light and then produced a handgun and demanded money. Tucker, who was a soldier, responded that he had only ten dollars. Octavia was pulled from the car, and Tucker was ordered out of the vehicle. Tucker was hit in the head with the butt of a pistol and forced to the ground, and Butler pulled off Octavia's jewelry. Octavia observed that both of the assailants were wearing dark clothing and masks. The men then forced the couple at gunpoint inside the home.

Once inside, Butler and Swain kicked open or pushed in a bedroom door and found Greene and Shalawn asleep. The men pointed handguns at them and demanded money, which they took from a dresser. Butler, who was doing most of the talking, demanded more money. Tucker and Octavia were forced to lie on the bed with Shalawn. Greene was hit with a pistol and taken into the bathroom. Butler told Tucker to "Lay down, cover your head. Don't look at me or I'm gonna pop you." Tucker responded, "I'm not looking at you." Butler then fired his weapon, fatally shooting Tucker in the head and wounding Shalawn in the arm. Butler again demanded more money from Greene, threatening to "pop" him. Then Butler and Swain ripped the telephones out of the walls and left.

Earlier, on the evening of December 4, 1995, Butler and Swain and Constance Gunter had attended a birthday party at an apartment complex close to the scene of the crimes. At the party, Butler and Swain were overheard talking about going to do a "jack" or a "lick," which the hearer knew was street slang for robbery. Butler was dressed in dark clothing, like "camouflage utilities." As Butler and his group left the party, one of them dropped a firearm and Butler commented, "Maybe you shouldn't drop your 45, `cause it's kind of like bad luck." Butler was known to carry a handgun, "either a nine or a 45."

Initially, Butler and Swain attempted to give some of the stolen jewelry to Gunter, eventually telling her that they had obtained the jewelry by committing a robbery. The jewelry was then given to Gunter's sister, Alisa Payne, who was also Butler's girlfriend. After conducting an investigation of the crime scene, the police executed search warrants for the homes of Swain, Gunter, and Payne. The searches uncovered items of jewelry taken from Pascal Greene and Shalawn Shellington.

At trial, a jailhouse informant testified that Butler told him about the fatal incident. Butler related that Swain was in the bathroom "detaining somebody," that "things got out of hand," and that the soldier would still be alive if he "didn't try to be a hero."

Butler testified and denied involvement in the crimes.

1. Butler contends that the State failed to prove his guilt beyond a reasonable doubt, asserting principally that the only direct evidence of his participation in the crimes was the testimony of the jailhouse informant, Coma, and that such testimony was motivated by Coma's desires for revenge and to better his own situation and, therefore, was not credible. But, it was for the jury to assess Coma's credibility as well as that of the other witnesses, to resolve any conflicts in the evidence, and to arrive at a determination of the facts. Bowden v. State, 270 Ga. 19, 21(4), 504 S.E.2d 699 (1998); Hodnett v. State, 269 Ga. 115, 116(1), 498 S.E.2d 737 (1998). The evidence was sufficient for the jury to find Butler guilty beyond a reasonable doubt of malice murder and the related crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Butler contends that the State was allowed to impermissibly place his character in issue by the admission into evidence of State's Exhibit 60, a photograph of Butler and Payne with a toy gun. But, Butler objected below on the bases of relevance and, arguably, on lack of foundation; he never asserted the improper injection of his character. Therefore, he may not raise it for the first time on appeal. Richardson v. State, 256 Ga. 746, 747(4), 353 S.E.2d 342 (1987). See also Williams v. State, 262 Ga. 422, 424(6), 420 S.E.2d 301 (1992).

3. Butler's contention that the trial court erred in admitting into evidence the jewelry seized from Alisa Payne is unavailing. The jewelry was admitted without objection. Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992). What is more, contrary to Butler's assertion, there was evidence tying the items to the crimes.

4. Butler also fails in his assertion that the State used the perjured testimony of Coma to obtain his convictions. There is no showing that the testimony was perjured. And to the extent that there may have been inconsistencies in Coma's testimony, such inconsistencies, as well as Coma's credibility, were for the jury to decide. Bowden v. State, supra at 21(4), 504 S.E.2d 699; Hodnett v. State, supra at 116(1), 498 S.E.2d 737.

5. Butler contends that the State was allowed to impermissibly cross-examine him regarding his first offender disposition in violation of due process and Matthews v. State, 268 Ga. 798, 801, 493 S.E.2d 136 (1997). He argues that the State should have put him on notice of its intent to bring up his first offender disposition, and that he should have been given a hearing to determine its admissibility. However, the contention and arguments are unavailing.

Butler failed to object at any time during the subject cross-examination. It was not until after the close of evidence that Butler moved for a mistrial, relying on Matthews v. State. Thus, Butler did not make the required contemporaneous objection in order to preserve his complaint for review on appeal. Garey v. State, 273 Ga. 133, 539 S.E.2d 123 (2000); State v. Larocque, 268 Ga. 352, 353, 489 S.E.2d 806 (1997). What is more, Matthews involved the court permitting the prosecutor to impeach the defense witness with his first offender record by raising it during cross-examination of the witness and then by having the record of the plea admitted into evidence. In this case, the State did not seek to impeach Butler with documentation of a prior disposition or conviction; in fact, the evidence of Butler's criminal history was introduced by Butler himself.

On direct, Butler testified that he had been on parole, so the State briefly cross-examined him about his statement. Butler elaborated that he "got a youth offender act in the State of South Carolina, which is a one to six for second degree burglary and grand larceny," and that the charges stemmed from the burglary of a hardware store. There was no attempt by the State to introduce into evidence the charges or their resolution. Nor was there any showing by Butler that the disposition of the South Carolina charges was akin to the sentencing option under Georgia's First Offender Act, OCGA § 42-8-60 et seq.

6. Butler fails in the contention that the trial court erred in not requiring the State to meet the requisite burden for offering similar conduct. Butler does not specify what similar act evidence he believes was improperly admitted. However, assuming that Butler is referring to his testimony on cross-examination of his prior out-of-state charges, his complaint has no merit. See Division 5, supra. Again, no timely objection was made at trial, therefore he cannot complain on appeal. Garey v. State, supra; State v. Larocque, supra at 353, 489 S.E.2d 806. See also Eackles v. State, 270 Ga. 558, 562(3), 512 S.E.2d 635 (1999). Furthermore, this was not a situation in which the State introduced a first offender plea as evidence that the defendant committed a similar independent offense. See Division 5, supra. Compare Davis v. State, 269 Ga. 276, 277(2), 496 S.E.2d 699 (1998).

7. Butler maintains that the trial court erred in failing to grant a mistrial after what he characterizes as improper prosecutorial comment which was prejudicial and placed his character in issue. But Butler never moved for a mistrial, nor did he object on the bases now urged.² See Division 2, supra. In any event, the State was merely explaining its reason for asking leading questions of its witness, and the trial court has the discretion to allow leading questions when the witness is reluctant to testify, as appeared to be the case with the witness at issue. Hayes v. State, 268 Ga. 809, 812(6), 493 S.E.2d 169 (1997).

8. Butler complains that the trial court...