Butler v. State

• Citation: 789 S.W.2d 898
• Decision Date: 07 May 1990
• Docket Number: No. 301,301
• Parties: Robert C. BUTLER, Petitioner-Appellee, v. STATE of Tennessee, Respondent-Appellant. 789 S.W.2d 898
• Court: Supreme Court of Tennessee

Page 898

789 S.W.2d 898

Robert C. BUTLER, Petitioner-Appellee, v. STATE of Tennessee, Respondent-Appellant.

No. 301.

789 S.W.2d 898

Supreme Court of Tennessee,

at Knoxville.

May 7, 1990.

Richard A. Hamra, II, Robert W. Ritchie, Knoxville, for petitioner-appellee.

Charles W. Burson, Atty. Gen. & Reporter, Kathy M. Principe, Asst. Atty. Gen., Nashville, William E. Dossett, Dist. Atty. Gen., Robert L. Jolley, Jr., Asst. Dist. Atty. Gen., Knoxville, for respondent-appellant.

OPINION

DROWOTA, Chief Justice.

This is a post-conviction proceeding in which the sole issue presented is whether Petitioner was deprived of his constitutional right to effective assistance of counsel. After an evidentiary hearing in 1985, the trial court dismissed the petition. Reversing the trial court and granting the petition, the Court of Criminal Appeals vacated the judgment of conviction and the sentence and remanded the cause for a new trial. We now reverse the Court of Criminal Appeals and reinstate the judgment of conviction and sentence.

In September 1977, Petitioner, Robert Butler, a black doctoral candidate in sociology at the University of Tennessee at Knoxville, was convicted of rape and sentenced by the jury to life imprisonment. Three months earlier Petitioner's trial on the same charges had resulted in a mistrial because of the jury's failure to agree. The same attorney represented Petitioner at both trials. On appeal, his conviction and sentence at the second trial were affirmed.

The proof at the second trial showed that the victim was an eighteen-year-old white female student enrolled in a sociology class taught by Petitioner. On October 7, 1976, Petitioner allowed the victim to take a test in his office on the day before the test was scheduled so that the victim could leave school early to visit her parents.

After the victim finished the test, she accepted Petitioner's invitation to participate with him in an undefined "experiment." Petitioner placed two chairs facing each other inside an office closet and had the victim sit in one while he sat in the other. The closet door was closed and the closet was completely dark. Petitioner threatened the victim with violence and, holding a sharp object he said was a knife at her throat, forced her first to perform fellatio on him and then to engage in sexual intercourse. Petitioner then allowed the victim to leave. Returning to her dormitory, she told her roommate what had occurred and, upon her roommate's advice, reported the offense to the University police. An officer took her to the University Hospital, where she was examined and released. One of the officers who had accompanied the victim to the hospital testified that she had observed a discoloration resembling a pressure mark on the victim's neck. The doctor who had examined the victim, however, did not testify at the trial.

Petitioner's theory was that the sexual relations had been consensual. He himself did not testify. The only witness for the defense was a graduate student who testified that, when she had seen Petitioner an hour or so after his encounter with the victim, he was behaving normally.

On post-conviction it has been Petitioner's theory, accepted by the majority of the Court of Criminal Appeals, that the failure of defense counsel to present the testimony of the doctor who had examined the victim at the University Hospital after the rape, coupled with counsel's failure to have Petitioner testify as a witness in his own behalf, after announcing to the jury on voir dire that Petitioner would testify, constituted ineffective assistance of counsel. Both the doctor, as a witness for the State, and Petitioner had testified at the first trial. The majority of the Court of Criminal Appeals therefore concluded that counsel's "significant change in strategy" at the second trial "constituted a deficiency in performance that resulted in prejudice to the Petitioner on the issues of guilt or punishment."

The standards by which ineffectiveness of counsel is judged in Tennessee are set forth in Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.1975), which requires that the advice given, or the services rendered by the attorney, be within the range of competence demanded of attorneys in criminal cases. The rule devised by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), provides:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless the defendant makes both showings, it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary process that renders the result unreliable.

The findings of fact of the trial judge on post-conviction hearings are conclusive on appeal unless the evidence preponderates against the judgment. Vermilye v. State, 754 S.W.2d 82, 84 (Tenn.Cr.App.1987)- ; Turner v. State, 698 S.W.2d 90, 91 (Tenn.Cr.App.1985); Janow v. State, 4 Tenn.Cr.App. 195, 470 S.W.2d 19, 21 (1971). A review of the record in this case does not convince us that the proof preponderates against the judgment entered by the trial court denying post-conviction relief.

As to the allegation of ineffective assistance of counsel stemming from counsel's failure to have Petitioner testify, the proof clearly does not preponderate against the trial court's decision. Review of the transcripts of both trials confirms the opinions of the post-conviction trial judge, who also presided at both trials, and of the dissenting member of the Court of Criminal Appeals that the proof at the first trial was much stronger for the State's theory than that presented at the second trial. This was caused in large part by defense counsel's decision, in which there is proof Petitioner concurred, that Petitioner not testify at the second trial.

Review of the transcripts of both trials also confirms the trial judge's conclusion that Petitioner did not "make a good witness" at the first trial. In addition, his testimony opened the door to very damaging rebuttal testimony. For example, at the first trial the victim had testified that Petitioner had maneuvered her into a position of vulnerability by convincing her to engage in an "experiment" he implied he had previously performed with other students. Petitioner then testified that the victim, not he, had initiated intercourse. He denied asking the victim to participate in any experiment or having previously conducted "suggestive" experiments with other young female students concerning their sexual activities.

On rebuttal the State presented the testimony of two of Petitioner's former students with whom he had conducted experiments very similar to that the victim had described. None of these experiments had led to sexual intercourse, but the similarity of the incidents to that described by the victim made the testimony extremely damaging to Petitioner. At the second trial it is clear that the State intended to present these same rebuttal witnesses as well as a third witness, who would have testified that Petitioner had threatened her with a knife, an element missing from the rebuttal testimony at the first trial.

During cross-examination of Petitioner at the first trial the State had also elicited admissions that he had prepared and initiated the sending of form letters to the victim's family and neighbors requesting the victim take psychiatric and polygraph tests, suggesting that the victim had been having an affair with a married man, and remarking...