Butler v. State

• Decision Date: 17 September 2019
• Docket Number: NO. 2017-KA-01151-COA,2017-KA-01151-COA
• Parties: Christopher BUTLER a/k/a Christopher D. Butler, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

292 So.3d 251

Christopher BUTLER a/k/a Christopher D. Butler, Appellant

v.STATE of Mississippi, Appellee

NO. 2017-KA-01151-COA

Court of Appeals of Mississippi.

September 17, 2019

Rehearing Denied January 7, 2020

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson, JUSTIN TAYLOR COOK

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH, Jackson, KATY GERBER

BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

TINDELL, J., FOR THE COURT:

¶1. A Hinds County jury convicted Christopher Butler of possession of more than one kilogram but less than five kilograms of marijuana. The Hinds County Circuit Court, First Judicial District, sentenced Butler as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) and as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2018) to thirty years in the custody of the Mississippi Department of Corrections (MDOC) and fined him $500,000.

¶2. On appeal, Butler argues: (1) the admission into evidence of a confidential informant's statement to a law-enforcement officer violated his right to confront the witnesses against him; (2) the circuit court erroneously limited the testimony of his witness; (3) the introduction of certified copies of his prior convictions violated his right to confrontation; (4) the circuit court erroneously appointed the Office of the Attorney General (the Attorney General) as special prosecutor in his case; (5) the circuit court erred by denying his recusal motion; and (6) his attorney rendered ineffective assistance.¹

¶3. Finding no error, we affirm Butler's conviction and sentence.

FACTS

¶4. On April 19, 2011, Agent Kevin Dear received a call from a confidential informant, who provided Butler's name and address and stated that Butler was selling drugs from his home. The informant further stated that he had seen marijuana inside Butler's home within the last twenty-four hours. At the time of Butler's arrest, Agent Dear worked as a narcotics detective for the Jackson Police Department and was part of a multi-agency task force that worked to combat local drug activity. By the time of Butler's trial, Agent Dear worked for the Mississippi Bureau of Narcotics (MBN). Based on the informant's information, Agent Dear obtained a warrant to search Butler's home.

¶5. Around 12:30 p.m. on April 19, 2011, the task-force agents entered Butler's home. Agent Dear testified that there was a strong odor of marijuana as they approached Butler's home and entered. After securing the home and finding no one inside, the agents began to search for drugs. Agent Dear testified that the odor of marijuana was especially strong in the home's front room, where agents discovered four gallon-size Ziploc bags that contained a green leafy substance later identified as marijuana. The four bags contained a total of 1,772 grams, or approximately four pounds, of marijuana. The agents also uncovered over $70,000 in cash, the largest amount of which was stored in a master-bathroom drawer. In both the kitchen and an office area, the agents found a money counter. The office area also contained several ledgers.

¶6. Agent Dear testified that, after arresting Butler and reading him his Miranda² rights, Butler signed a form acknowledging that he was willing to give the agents a statement. Agent Dear further testified that Butler then verbally admitted that the recovered drugs belonged to him, but he refused to provide the agents with a signed written statement.

¶7. In questioning Butler, the agents learned that Butler's home contained a multi-camera surveillance system. Around 8:30 a.m. on April 19, 2011, the surveillance footage showed Butler exit his house and then return carrying a large duffel bag. A car arrived at Butler's house shortly before 9 a.m., and two men walked toward the house with Butler. The men and Butler exited the house around 9 a.m. Butler carried the large duffel bag toward the passenger side of the men's car. Butler then returned to the house without the bag. When he reentered the house, Butler carried a plastic trash bag, which he set down on the floor. Butler then continued into his kitchen holding a large amount of cash, which he set on the counter. He later carried the cash into the master bathroom. Around 9:39 a.m., the video footage showed Butler and another man enter Butler's house. At 9:42 a.m., Butler and the other man exited the house. Butler appeared to be carrying the plastic bag in his hand. A minute later, Butler reentered his home, opened an ottoman, and dropped four gallon-size Ziploc bags into the ottoman. Butler then carried some cash through his kitchen and into the master bathroom. At 12:32 p.m., the video showed the search team enter Butler's home. At 12:42 p.m., one of the agents opened the ottoman and discovered the bags of marijuana.

¶8. Prior to trial, the Attorney General moved to disqualify Robert Shuler Smith, the Hinds County District Attorney, from all matters dealing with Butler. In his response, District Attorney Smith agreed that he should be recused from all criminal prosecutions in Butler's case and formally recused himself. In an August 23, 2016 order, the circuit court granted the Attorney General's motion to disqualify District Attorney Smith. The circuit court appointed the Attorney General's Division of Public Integrity as special prosecutor in the matter.

¶9. On December 16, 2016, Butler filed a motion for the circuit judge's recusal from his case. According to Butler, recusal was appropriate due to "contentions" between the judge and District Attorney Smith. The circuit judge noted, however, that District Attorney Smith no longer served as the prosecutor on Butler's case after voluntarily recusing himself almost six months previously. After finding that Butler's attorney had "failed to point to any facts in the record that the undersigned is prejudiced against his client, but rather ha[d] made broad accusations that prejudice should be inferred based [on] alleged animosity with an attorney who never represented the [D]efendant in this action and is no longer involved in the pending litigation[,]" the circuit judge denied Butler's recusal motion.

¶10. Also prior to trial, the Attorney General moved to exclude testimony from Butler's proposed witness Josh Ledford. Ledford arrived at Butler's home while agents were still conducting their search. The agents escorted Ledford into Butler's kitchen and questioned him but did not charge or arrest Ledford. The defense proffered testimony from Ledford that he observed a canine inside Butler's home and that the dog neither barked nor, in his opinion, in any way alerted to the presence of drugs in Butler's home. The circuit court found Ledford's proffered testimony irrelevant because the observed events occurred after the agents had found and removed the marijuana from Butler's home. The circuit court also concluded Ledford's testimony was "not competent evidence as there was no foundation that he [Ledford] was—either as a layman or an expert—aware of how a drug-sniffing dog alerts."

¶11. The defense also proffered Ledford's testimony that he overheard some of the agents use a racially inappropriate term in reference to Butler. The circuit court considered the testimony's relevance under Mississippi Rule of Evidence 401 and then conducted a balancing test under Mississippi Rule of Evidence 403. After doing so, the circuit court found that the proffered testimony was "wholly irrelevant to the guilt or innocence of whether ... [Butler] possessed drugs on the date charged" and "seem[ed] to be elicited by the defense in an attempt to inflame the passions of the jurors." The circuit court therefore concluded that the testimony was not only irrelevant but that the testimony's danger of unfair prejudice to the State substantially outweighed any alleged probative value. The circuit court did, however, allow Ledford to testify that he never smelled any suspicious odors while inside Butler's home.

¶12. After considering all the evidence and testimony, the jury found Butler guilty of possession of more than one kilogram but less than five kilograms of marijuana. The circuit court then sentenced Butler as both a habitual offender and a subsequent drug offender to thirty years in MDOC's custody and fined him $500,000. Butler filed an unsuccessful motion for a judgment notwithstanding the verdict or, alternatively, a new trial. Aggrieved, Butler appeals.

DISCUSSION

I. Confidential Informant's Statement

¶13. Butler filed a pretrial motion seeking disclosure of the confidential informant's identity. According to the motion, the informant's statement to Agent Dear depicted the informant as an eyewitness to the events that supported the charge against Butler. The circuit court denied Butler's motion. For the first time on appeal, Butler contends that the circuit court erred by allowing Agent Dear to testify about the confidential informant's statement because the statement was hearsay and its admission violated Butler's right to confront the witnesses against him. Because he failed to raise these objections before the circuit court, Butler asks this Court to review his argument under the plain-error doctrine.

¶14. "To determine whether plain error has occurred, the reviewing court must determine: (1) if the trial court deviated from a legal rule; (2) whether that error is plain, clear, or obvious; and (3) whether the error prejudiced the outcome of the trial." Robinson v. State , 247 So. 3d 1212, 1226 (¶27) (Miss. 2018). Ordinarily, appellate courts "review a circuit judge's ruling regarding disclosure of a confidential informant for abuse of discretion." Ray v. State , 238 So. 3d 1118, 1123 (¶26) (Miss. 2018). Uniform Rule of Circuit and County Court 9.04(B)(2)³ provides:

Disclosure of an informant's identity shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure

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