State v. Butler

• Decision Date: 01 February 1990
• Docket Number: No. C,C
• Citation: 795 S.W.2d 680
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE of Tennessee, Appellee, v. Charles Aaron BUTLER, and James E. Riggins, Appellants. C.A. 1118. 795 S.W.2d 680

Page 680

795 S.W.2d 680

STATE of Tennessee, Appellee, v. Charles Aaron BUTLER, and James E. Riggins, Appellants.

No. C.C.A. 1118.

795 S.W.2d 680

Court of Criminal Appeals of Tennessee at Knoxville.

Feb. 1, 1990.

Permission to Appeal Denied by

Supreme Court June 11, 1990.

Mark G. Rothberger (at trial and on appeal), Chattanooga, for appellant Riggins.

Timothy Deere (at trial), John McCarthy (at trial), Larry Campbell (at trial), Randall L. Russell (on appeal only), Jerry H. Summers (on appeal only), Chattanooga, for appellant Butler.

Charles W. Burson, Atty. Gen. and Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Stephen M. Bevil, Jerry S. Sloan, Asst. Dist. Attys. Gen., Chattanooga, for State of Tenn.

OPINION

WADE, Judge.

The defendant, Charles Aaron Butler, was convicted of the following offenses for which he received an effective Range II sentence of 80 years (1) aggravated assault, an especially aggravated offense; as a persistent offender, he received a Range II sentence of 10 years;

(2) first degree burglary while using a firearm, an especially aggravated offense; as a persistent offender, he received a Range II sentence of 15 years, enhanced to 20 years because of the firearm, to be served consecutively;

(3) robbery by the use of a deadly weapon, an especially aggravated offense; as a persistent offender, he received a Range II sentence of 50 years, to be served consecutively to the other two convictions.

The defendant, James E. Riggins, received an effective, Range I sentence of 45 years for the following offenses:

(1) aggravated assault, Range I standard offender, five years;

(2) first degree burglary while using a firearm, Range I standard offender, 10 years enhanced to 15 years because of the firearm, to be served consecutively;

(3) robbery by the use of a deadly weapon, Range I standard offender, 25 years, to be served consecutively.

In this appeal, the defendants challenge the sufficiency of the evidence and present the following additional issues:

(1) whether Butler's motion for a severance should have been granted;

(2) whether Butler's motion for a continuance was improperly denied;

(3) whether evidence seized incident to the arrest was obtained in violation of the defendants' fourth amendment rights;

(4) whether the in-court identifications of the defendants were improperly admitted into evidence;

(5) whether the state exercised its peremptory challenges in violation of the defendants' fourteenth amendment rights;

(6) whether Butler was denied the effective assistance of pre-trial counsel;

(7) whether the defendants were properly sentenced.

The defendants' convictions are affirmed; the sentences are modified. We calculate Butler's modified, effective sentence as one of 75 years; Riggins' is 40 years.

In the early morning hours of June 18, 1987, two men broke into the residence of George and Clara Freeman. When Mrs. Freeman resisted their attempt to enter her bedroom, one of the men struck her in the mouth, eye, and head with the butt of a pistol. The burglars bound the couple, ransacked the house, and threatened to shoot their victims. Over $15,000.00 in jewelry, checks and money had been taken from the Freeman home.

During a lineup at police headquarters, Mrs. Freeman identified Riggins as one of the burglars but could not identify Butler. Her husband was able to identify Butler but not Riggins. At trial, however, Mr. Freeman identified both defendants.

On the evening before the break-in, the victims' son and daughter-in-law saw Riggins, in the accompaniment of Butler, driving a white Lincoln Continental around the Freeman's produce market. Each noted that the car's license plate started with "CHZ."

Three days later a police officer, investigating a suspicious vehicle complaint, encountered Riggins driving a white Lincoln Continental bearing license plate number "CHZ 733." Butler was a passenger in the car. Riggins, wearing a gold chain taken from the victims' house, identified himself as Charles Hutchins. Ultimately, Riggins confessed to his involvement.

Crime Lab detectives were unable to find any fingerprints at the victims' house which matched either defendant. It could not determine the type from a blood stain found on Riggins' gun.

An alibi witness testified that Butler was with her the night of the burglary.

On appeal, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 836 (Tenn.1978). The verdict of guilt removes the presumption of innocence and gives rise to a presumption of guilt. State v. Grace, 493 S.W.2d 474, 476 (Tenn.1973).

This court, in reviewing the evidence in the light most favorable to the state, must conclude that a rational trier of fact could have found beyond a reasonable doubt that the defendants' broke into the Freeman residence at night, beat Mrs. Freeman, and took jewelry from the residence. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Tenn.R.App.P. 13(e).

I

Butler claims that he should have been tried separately because Riggins' confession was introduced in violation of his sixth amendment right of confrontation. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Under these circumstances, Rule 14(c) of the Tennessee Rules of Criminal Procedure permits either a severance or a redaction of the co-defendant's statement. Tenn.R.Crim.P. 14(c)(1)(ii). The trial court chose the latter option, removing any mention of Butler from Riggins' confession. See State v. Coleman, 619 S.W.2d 112 (Tenn.1981); Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969). We find no abuse of the discretion permitted the trial court. See Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). At most, the co-defendant's statement implied that Riggins did not act alone.

This conclusion does not end our inquiry, however. During closing arguments, the state asked the jury to consider Riggins' confession as a means of refuting Butler's argument for acquittal:

For example, he [Butler's counsel] says it's a reasonable doubt going toward Mr. Butler's credit that they didn't find his fingerprints. Sounds good until you examine it. They didn't find Mr. Riggins' fingerprints in that home, and Mr. Riggins admitted to the detectives that he was there and he got the necklace out of the home.

By this comment, "the prosecutor sought to undo the effect of the limiting instruction by urging the jury to use [Riggins'] confession in evaluating [Butler's] case." Marsh, 107 S.Ct. at 1709.

The state concedes the argument was improper but claims that the error was waived when Butler failed to object or present the issue on appeal. Tenn.R.App.P. 36(a). Alternatively, the state submits that the error was harmless. Tenn.R.App.P. 36(b).

This court may consider plain error when the error affected "the substantial rights of an accused." Tenn.R.Crim.P. 52(b); State v. Maynard, 629 S.W.2d 911 (Tenn.Crim.App.1981). Although not every Bruton violation requires reversal under the doctrine, they are particularly appropriate subjects of plain error analysis. State v. Ogle, 666 S.W.2d 58, 61 (Tenn.1984); see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

In order to reverse on this ground, however, we must find that

(1) the statement constitutes plain error;

(2) the statement was an important part of the state's case; and

(3) the objection was not intentionally waived for tactical purposes.

666 S.W.2d at 60.

Although there is no indication Butler intentionally waived the issue for tactical purposes, it is clear that Riggins' statement was not critical evidence. There was positive testimony that Butler was a participant in the burglary. Mr. Freeman unhesitantly identified Butler from police lineup. Circumstantial evidence strongly suggested his participation in the offenses. The instruction provided the jury by the trial court precluded any consideration of Riggins' confession in their deliberations of the charges against Butler.

In our view, the state's improper argument was harmless beyond a reasonable doubt.

II

When personality conflicts developed between the two, Butler's trial counsel sought permission to withdraw six days before trial. The trial court denied this motion, appointed Butler with co-counsel, and refused to permit a continuance. As a consequence, Butler claims that he was denied his right to effective assistance of counsel.

The grant or denial of a motion for continuance rests within the sound discretion of the trial judge. His determination will not be overturned unless there is a clear showing of abuse of that discretion. Woods v. State, 552 S.W.2d 782 (Tenn.Crim.App.1977); Frazier v. State, 3 Tenn.Crim.App. 696, 466 S.W.2d 535 (1970). This court will only order a reversal if it is convinced that the complaining party did not have a fair trial and that a different result might reasonably have been reached had the continuance been granted. Maxwell v. State, 501 S.W.2d 577 (Tenn.Crim.App.1973).

Two other attorneys had been granted permission to withdraw as Butler's counsel. Neither could get along with their client. The trial court found Butler's refusal to cooperate at least part of the problem and refused to allow his third attorney to withdraw. Co-counsel, who had represented Butler at the preliminary hearing on these charges, was appointed as a "go-between."

While a defendant has a right to the effective assistance of counsel during his trial, this right cannot be asserted in a manner which will obstruct the orderly procedures of the court. State v. Zyla, 628 S.W.2d 39, 41 (Tenn.Crim.App.1981). The record does not suggest that the trial judge abused his discretion in overruling the defendant's motion for a continuance. We do not believe that the results would have been different even had the...