Butler v. StateButler v. State
After a bench trial that was held in March 2013, Cory Frayana Butler was convicted of malice murder and other crimes for his involvement in a home invasion and beatings that resulted in the death of Epsie Ewing (“Mrs. Ewing”) and injury of her husband, C.F. Ewing (“Mr. Ewing”).1 Butler raises four claims of error on appeal:
Four days later, on May 21 at around 12:00 or 1:00 p.m., Butler returned to the Ewings’ house with J.J. Blackwell and Barry Partee. At trial, Mr. Ewing, who had positively identified Butler, Blackwell, and Partee in photographic lineups, testified as follows. After parking in the Ewings’ driveway, Butler and Blackwell exited the car, approached Mr. Ewing, and again expressed interest in рurchasing his red truck. Mr. Ewing and Butler then went for a test drive around the block while Blackwell and Partee followed Mr. Ewing’s truck in their car. Upon returning to the house, Butler said “don’t try nothing [because] I got a gun on you.” Butler then exited the truck and began “pistol whipping” Mr. Ewing and beating him on the head with a pistol. Butler “knocked” Mr. Ewing through the back door of the Ewings’ house, and Blackwell and Partee followed them inside.
In the utility room, Butler and Blackwell “started beating” Mr. Ewing in the face and head, causing him to fall. Butler also hit Mrs. Ewing, who was standing in the utility room, in the forehead with
After Butler, Blackwell, and Partee left the Ewings’ house,4
Mrs. Ewing was flown to the Atlanta Medical Center, where she was admitted in critical condition and in a coma. A physical exam and CT scans were performed and showed that she had large cuts on her scalp, fractured facial bones, swelling and bruises on her face, and fractures in both arms. Shе died on June 23. After performing an autopsy, Dr. Lora Darrisaw of the Georgia Bureau of Investigation (“GBI”), who testified at trial, determined that the cause of death was multiple-system organ failure due to “poor circulation [and] poor oxygenation” following the “blunt force
Walton testified at trial that after Jackson told her about the events of May 21, Walton asked Butler if he had beaten Mrs. Ewing, and Butler responded that he had not. Butler then asked Walton “did [she] love [her] auntie,” referring to Jackson, and “how would you feel if she was dead?” Walton interpreted this to mean that Butler “might do something” to Jackson “like kill her or something” if she talked about the events of May 21 or Butler’s alleged involvement. Nevertheless, Walton discussed the matter with a friend, who in turn called the City of Monroe Police Department and told police to speak with Jackson about the matter. An investigation led officers to obtain an arrest warrant and issue a “be on the
On May 26, a Georgia State Patrol trooper—who was looking for Butler because of the BOLO—recognized Butler and began questioning him. Butler provided a false name and then fled on foot before being apprehended. Butler was arrested, and when a detective interviewed him, he denied any involvement in the Ewings’ home invasion and beatings, claiming that “he robs rich people” but that he “doesn’t rob poor people.” He also stated that a man named Richard Deloatch from Monroe was the culprit. But after the police spent a week searching for Deloatch, they concluded that “there appeared to be no such person.”
2. Butler contends that the evidence was insufficient to support his conviction for malice murder because even if there was evidence that he struck Mrs. Ewing over the head once with a pistol, the evidence shоwed that Blackwell dealt the “fatal blows” to Mrs.
When evaluating a challenge to the sufficiency of the evidence as a matter of constitutional due process, we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979)). We leave to the trier of fact “the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts,”
As a matter of Georgia statutory law, “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”
Moreover, “we have long held, in numerous cases, that proximate causation is the test for malice murder.” State v. Jackson, 287 Ga. 646, 649 (697 SE2d 757) (2010) (collecting cases). See also Stribling v. State, 304 Ga. 250, 252-254 (818 SE2d 563) (2018) (applying proximate cause standard in determining that evidence was sufficient to support a malice murder conviction). An injury is the proximate cause of death when “(1) the injury itself constituted the sole proximate cause of the death; or . . . (2) the injury directly and materially contributed to the happening of a subsequent accruing immediate cause of the death; or . . . (3) the injury materially accelerated the death, although proximately occasioned by a pre-existing cause.” Stribling, 304 Ga. at 253 (citation and punctuation omitted). See also Clarke v. State, 292 Ga. 305, 306 (737 SE2d 575) (2013) (evidence that defendant inflicted blunt-force trauma on elderly victim’s head sufficiently supported malice
Here, the evidence was sufficient to convict Butler as a matter of constitutional duе process and as a matter of Georgia statutory law. Among other things, the evidence introduced at trial included testimony from Mr. Ewing, who survived the home invasion that resulted in the death of his wife, Mrs. Ewing, and who positively identified Butler as one of their assailants. Mr. Ewing testified that he saw Butler pistol-whip Mrs. Ewing on the head. But he also testified that he pleaded with the group of assailants, which he referenced as “them,” to stop hitting Mrs. Ewing. And based on that testimony and other evidence presented at trial, the jury was authorized to infer that Butler—whom Mr. Ewing identified from a photographic lineup and at trial as one of the men who attacked Mrs. Ewing and him—attacked Mrs. Ewing beyond the pistol-whip about which Mr. Ewing separately testified. According to Mr. Ewing, the assailants’ additional assault against Mrs. Ewing left her beaten and bloodied. Other evidence presented at trial included Butler’s
And although Butler points to Dr. Stevens as supporting Butler’s defense theory that he did not cause Mrs. Ewing’s death, Dr. Stevens’ testimony undermines, rather than supports, Butler’s claim. That is because Dr. Stevens testified that it was “likely” that Mrs. Ewing’s preexisting medical conditions, “combined” with the blunt force trauma she suffered during the assault, caused her death, thus allowing the trial court, as the trier of fact, to conclude that the injuries from Mrs. Ewing’s beating “materially accelerated [her] death,” Jackson, 287 Ga. at 649, and thus proximately caused it. Specifically, the court heard that Mrs. Ewing was admitted to
3. Butler contends that his right to a jury trial under the Sixth Amendment to the United States Constitution was violated because the trial court “never questioned [him] to determine whether he knowingly and intelligently waive[d] his right to a jury trial.” As explained below, the record belies that argument and this enumeration of error fails.
“When a defendant seeks to waive his or her right to a jury trial, a trial court should ask the defendant sufficient questions on
Here, the record shows that the State initially sought the death penalty in this case, filing a notice of intent (and lаter an amended notice) to seek the death penalty. On March 13, 2013, Butler and the State entered into a consent agreement, signed by both parties, whereby the State withdrew its notice of intent to seek the death penalty and Butler waived his right to a jury trial. The consent agreement expressly provided that Butler “does hereby waive trial by jury on the charges in [this] case and consents to be tried by the
The parties presented the trial court with the consent agreement during a pretrial motions hearing held that same morning. Both the State and Butler’s counsel verbally agreed to proceed without a jury. The trial court then asked a series of questions to determine whether Butler “expressly, intelligently and personally participate[d] in the waiver of his right to a jury trial.” After affirming that Butler would provide truthful answers to its questions, the trial court had the following exchange with Butler:
THE COURT: That’s good. Now, Mr. Butler, you signed this consent agreement between the State of Georgia and the accused to proceed under Senate Bill Number 13. It includes, but [is] not limited to, the waiver of the jury trial. Did your attorney explain to you everything that’s in this consent agreement?
THE DEFENDANT: Yes, sir.
THE COURT Did you understand everything in this consent agreement?
THE DEFENDANT: I mean, I understand according to how they explained it to me, yes.
THE COURT: Well --
THE DEFENDANT: Yes, sir.
THE COURT: Okay. So they explained everything to you to the best of their ability . . . about waiving a jury trial. Do you want to waive a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand we’re here today and we have jurors back there ready to be picked to have a jury trial in this matter? Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And if you want a jury trial, it’s your constitutional right to have a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: But if you want to consent to not have a jury trial, if you do that, expressly, intelligently and personally make a decision not to have a jury trial, then you have that right also?
THE DEFENDANT: Yes, sir.
THE COURT: Do you want to waive a jury trial and proceed without a jury here today?
THE DEFENDANT: Yes, sir.
THE COURT: And that’s after your attorneys have explained to you all the ramifications, the benefits and drawbacks of waiving a jury trial; is that correct?
THE DEFENDANT: They explained to me, I guess, it would be in my best interest to waive the jury trial and proceed with a bench trial. THE COURT: All right. And after listening to them, do you feel like it’s in your best interest to proceed without a jury trial?
THE DEFENDANT: Yes, sir.
THE COURT: All right. I find that the defendant has expressly, intelligently and personally participated in the waiver of his jury trial.
Later that afternoon, immediately prior to the start of the bench trial, Butler’s attorney stated that “Mr. Butler just wanted me to put on the record that he is absolutely on board” with a bench trial. Butler again confirmed on the record that he agreed.
Contrary to Butler’s claim on appeal, the record shows that the trial court repeatedly inquired about whether Butler had been informed about and understood his right to a jury trial and that he was choosing to waive it, that Butler stated he did so because he believed it was in his best interest, and that both the trial court and Butler confirmed that Butler wanted a bench trial. The trial court did not err, let alone clearly err, by finding that Butler had
4. Butler contends that his trial counsel provided ineffective assistance under the Sixth Amendment to the United States Constitution. But for the reasons explained below, his claims fail.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel’s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrаte that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.S. at 687-688. Moreover, “[t]rial counsel’s decisions relating to strategy and tactics are not judged by hindsight.” Jones v. State, 296 Ga. 561, 567 (769 SE2d 307) (2015). To satisfy the prejudice
(a) Butler contends that he waived his right to a jury trial in part because of his trial counsel’s belief that co-defendant Partee was going to testify against Butler, and implies that his trial counsel performed deficiently because one predicate for counsel’s advice to agree to a bench trial—that Partee was going to testify—did not materialize. Specifically, when Partee was called to testify at Butler’s trial, Partee testified that he felt “pressured” to plead guilty, that what he had agreed to testify about as part of his plea agreement “wasn’t true,” and that he wanted a jury trial in his case instead of pleading guilty. As a result, the trial court excused Partee from the witness stand and the State called its next witness.
(b) In a related argument, Butler contends that his trial counsel performed deficiently by failing to call Partee as a witness after Partee’s recantation. Butler characterizes not calling Partee as a witness as a failure to “present potentially exculpatory evidence.”
To begin, it is well settled that the determination of which witnesses to call is a “matter[ ] of trial strategy and tactics, and such
(c) Butler also contends that trial counsel performed deficiently “in his presentation of [ ] Butler’s defense,” specifically by arguing at trial that Butler was falsely identified as being part of the group of men who killed Mrs. Ewing, rather than arguing that Butler was merely present but not a party to the crime of murder because Blackwell (not Butler) dealt the blows that ultimately killed Mrs. Ewing.
“An attorney’s decision about which defеnse to present is a question of trial strategy,” and “unless the choice of strategy is objectively unreasonable, such that no competent trial counsel would have pursued such a course, we will not second-guess counsel’s decisions in this regard.” Anthony v. State, 311 Ga. 293, 298 (857 SE2d 682) (2021) (citation and punctuation omitted).
Here, the record shows that certain aspects of the evidence presented at trial supported trial counsel’s false identification argument. For example, one eyewitness failed to identify Butler from a photographic lineup, and there were apparent discrepancies in some of the witnesses’ descriptions of the men who were seen at the Ewings’ home on the day of the home invasion and beatings, specifically regarding whether Butler had facial hair—a point on which some witnеsses provided inconsistent testimony. Regarding Butler’s contention that his trial counsel should have argued mere presence, we note that—as recounted in Division 2—there was
5. Butler contends that the trial court erred by purporting to “merge” the felony murder verdicts into the malice murder conviction for sentencing purposes. The State concedes this point, and we agree. But because—as noted in footnote 1—the felony murder verdicts actually were vacated by operation of law, and because the trial court’s erroneous nomenclature (i.e., referring to
Judgment affirmed. All the Justices concur.