Butler v. State

• Decision Date: 23 January 2012
• Docket Number: No. S11A1827.,S11A1827.
• Citation: 721 S.E.2d 876,12 FCDR 202,290 Ga. 412
• Parties: BUTLER v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 202
290 Ga. 412
721 S.E.2d 876

BUTLER
v.
The STATE.

No. S11A1827.

Supreme Court of Georgia.

Jan. 23, 2012.

[721 S.E.2d 879]

Victor Hawk, Augusta, for appellant.

Charles R. Sheppard, Asst. Dist. Atty., R. Ashley Wright, District Attorney, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Sara Kaur Sahni, Assistant Attorney General, for appellee.

CARLEY, Presiding Justice.

[290 Ga. 412] After a jury trial, Appellant Willie Bernard Butler, Jr. and his codefendant Martin Holmes were found guilty of the malice murder and armed robbery of Rickey Gibson, the burglary of Gibson's and Alexis Yates' dwelling house, aggravated assault against their infant son Jordan Yates, the aggravated assault and kidnapping of Ms. Yates, two counts of possession of a firearm during commission of the crimes against Gibson and Ms. Yates, the burglary of Randy Manning's dwelling house, aggravated assault against Greg Pridgen, and hijacking Pridgen's motor vehicle. Holmes was also found guilty of possession of marijuana. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for murder and to various terms of years for the remaining crimes. A motion for new trial was denied, and he appeals.^*

1. Construed most strongly in support of the verdicts, the evidence shows that Appellant, Holmes, and at least two other young men, all of whom were carrying guns, broke into Gibson's and Ms. Yates' house, demanded money, put a handgun into the baby's mouth, hit Ms. Yates in the head with a gun, and forced her to go outside. Ms. Yates escaped with the baby, and the men shot Gibson multiple times, killing him. A shoe print near the house was consistent with the shoes that Appellant was wearing, and Ms. Yates later identified Holmes as one of the intruders.

Gibson's gold watch was stolen during the home invasion and was left behind about two hours later in Manning's yard after his house was burglarized by Appellant and Holmes. Appellant defecated in the yard and cleaned himself with a bloody sock which tested positive for his DNA. Shortly afterwards, Appellant and Holmes entered Pridgen's car while it was running and he was [290 Ga. 413] delivering a newspaper. Pridgen fought with Appellant, who punched him several times and stabbed him. Police officers responded quickly and found Appellant and Holmes running down the street. Pridgen identified both of them as the perpetrators of the crimes against him. A search of a vehicle in which two of their co-indictees were riding revealed a bottle of pills belonging to Appellant's mother and a camera with pictures of Appellant and Holmes.

The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

[721 S.E.2d 880]

2. Appellant contends that the trial court erred in denying his motion to sever the parties. “In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. [Cits.]” Herbert v. State, 288 Ga. 843, 845(2), 708 S.E.2d 260 (2011). In exercising that discretion, the trial court must consider the following factors:

“ ‘(1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court's instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other's rights?’ (Cit.)” [Cit.]

Ward v. State, 288 Ga. 641, 644(3), 706 S.E.2d 430 (2011).

“There were only two defendants here, the law applicable to each defendant was substantially the same, and the evidence at trial showed that [Appellant] and [Holmes] acted together in” committing the jointly indicted crimes. Herbert v. State, supra. Appellant argues that the evidence against him, especially as to the murder, was weak in comparison to the evidence against Holmes. “However, it is not enough for the defendant to show that he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger. [Cit.]” Herbert v. State, supra. See also Moon v. State, 288 Ga. 508, 510(2), 705 S.E.2d 649 (2011). Appellant “has not pointed to any evidence admitted at his joint trial that would not have been admitted had his severance motion been granted and had he been tried alone.” Morgan v. Mitchell, 272 Ga. 134, 137(1), 527 S.E.2d 556 (2000). “As to ... any ‘guilt by association,’ the trial court instructed the jury ... that it was not authorized to find a person guilty of a crime who was ‘merely associated’ with other involved persons. [Cit.]” [290 Ga. 414] Denny v. State, 281 Ga. 114, 116(1), 636 S.E.2d 500 (2006).

[A]ppellant was being tried under the theory that he was a party to the [crimes] and “there was ample evidence to show that (he) was a party to the crime[s].” [Cit.] Where, as here, there is sufficient evidence of a “common scheme or plan” to commit ... criminal offense[s], joinder is authorized and severance is not mandatory. [Cit.]

Willingham v. State, 265 Ga. 435, 436(2), 457 S.E.2d 561 (1995).

Although Appellant also “claims on appeal that severance was warranted because [Holmes'] defense[ ] [was] antagonistic to his, [A]ppellant waived this ground by failing to raise it in the trial court. [Cit.]” Thorpe v. State, 285 Ga. 604, 609(4), 678 S.E.2d 913 (2009). Moreover, “neither [defendant] attempted to point the blame at the other[, and] ... ‘unless there is a showing of resulting prejudice, antagonistic defenses do not automatically require a severance. (Cits.)’ [Cit.]” Moon v. State, supra. Although Appellant complains that Holmes neither gave any statement nor testified, Appellant “has made no showing on appeal that [Holmes] could or would have provided exculpatory evidence.” Denny v. State, supra.

The defendant must show clearly that a joint trial prejudiced his defense, resulting in a denial of due process. [Cit.] [Appellant] made no such showing. Accordingly, the trial court did not abuse its broad discretion in denying [the] motion for a separate trial.

Herbert v. State, supra.

3. Appellant urges that the trial court erred in denying a motion to suppress the pre-trial identification of Appellant by Pridgen during a one-on-one show-up at the police station.

“ ‘Although a one-on-one showup is inherently suggestive, identification testimony produced from the showup is not necessarily inadmissible.’ ” Scruggs v. State, 309 Ga.App. 569, 575(4), 711 S.E.2d 86 (2011). In Sherwin v. State, 234 Ga. 592, 593, 216 S.E.2d 810 (1975), this Court held that, “[a]lthough as a general rule a police station

[721 S.E.2d 881]

showup, as opposed to a conventional lineup, is not favored,...