BUTTS v. THE STATE.
S01P0284
Supreme Court of Georgia
DECIDED APRIL 30, 2001.
273 Ga. 760 | 546 SE2d 472
SEARS, Justice.
3. It is asserted that the trial court violated
The evidence cited by defendant was relevant to the case and was not rendered inadmissible by the fact that it only incidentally placed his character in issue. See Ware v. State, 273 Ga. 16 (2) (537 SE2d 657) (2000); Johnson v. State, 260 Ga. 457 (2) (396 SE2d 888) (1990).
4. Any challenge to the inadmissibility of evidence of an argument between the defendant and the victim a week prior to her death was not objected to below and is not properly before the court. See Stratton v. State, 257 Ga. 593 (3) (362 SE2d 47) (1987).
5. Mullinax claims that he was denied effective assistance of trial counsel. Because his current counsel was retained after trial counsel had filed a notice of appeal, and after 30 days had elapsed from the judgment of conviction and sentence, there was no opportunity to assert a claim of ineffective assistance of trial counsel at the trial level. Therefore, we remand the case to the trial court for appropriate findings concerning the issue of ineffective assistance of trial counsel. McCulley v. State, 273 Ga. 40 (4) (537 SE2d 340) (2000).
Judgment affirmed and case remanded. All the Justices concur.
DECIDED APRIL 30, 2001.
J. Converse Bright, for appellant.
J. David Miller, District Attorney, Robert R. Auman, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ruth M. Bebko, Assistant Attorney General, for appellee.
S01P0284. BUTTS v. THE STATE.
(546 SE2d 472)
SEARS, Justice.
A jury found Robert Earl Butts, Jr., guilty of malice murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a crime, and possession of a
1. The evidence adduced at trial showed that on the night of March 28, 1996, Butts and Marion Wilson, Jr., drove in Butts‘s automobile to a local Wal-Mart store and began searching for a victim. Butts entered the store wearing a coat, under which he likely concealed the murder weapon. A witness observed Butts and Wilson standing behind Donovan Corey Parks in a checkout line. The cashier for that checkout line also remembered Butts being in her line. The store‘s receipts showed that Butts purchased a pack of chewing gum immediately after Parks made his purchase of pet supplies.
A witness overheard Butts asking Parks for a ride. After Parks moved items in his automobile to make room for Butts and Wilson, Butts sat in the front passenger seat and Wilson sat in the back seat behind Parks. According to a witness to whom Butts confessed, Butts revealed the shotgun a short distance away, and Parks was ordered to stop the automobile. Wilson dragged Parks out of the automobile by his tie and ordered him to lie facedown on the pavement. Butts then fired one fatal shot to the back of Parks‘s head with the shotgun. Witnesses nearby heard the shot, believing it to be a backfiring vehicle.
After murdering Parks, Butts and Wilson drove to a service station in Gray, Georgia, where they refueled Parks‘s automobile and where Wilson was filmed by the service station‘s security camera. Butts and Wilson then drove to Atlanta in an unsuccessful attempt
Investigators had recorded the license plate numbers of the vehicles parked in the Wal-Mart parking lot on the night of the murder, and Butts‘s automobile was among them. A shotgun loaded with an uncommon type of ammunition was found under Wilson‘s bed during a search, and a witness testified that Butts had given the weapon to Wilson to hold temporarily. Two of Butts‘s former jail mates testified that he had admitted to being the triggerman in the murder.
2. We find that, viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize the jury to find beyond a reasonable doubt that Butts was guilty of all charges and that the one statutory aggravating circumstance existed.2 We apply the same standard to also conclude that the trial court did not err in denying Butts‘s motion for a directed verdict.3
Pretrial Issues
3. Butts argues that the trial judge should have recused herself simply because she had previously presided over juvenile proceedings against Butts; Butts further argues that his trial counsel rendered ineffective assistance by failing to request the trial judge‘s recusal. We disagree with both arguments.
We find that the issue of the trial judge‘s alleged error for failing to recuse herself is waived because Butts and his trial counsel failed to raise the issue at or before trial.4
Because Butts also claims that his trial counsel rendered ineffective assistance in waiving the issue of recusal by failing to raise it at trial, we directly address the merits of the issue of the trial judge‘s alleged need for recusal. “In order to be disqualifying [an] alleged [judicial] bias ‘must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge
Jury Selection
4. Butts contends that the trial court erred in finding juror Donnelly qualified to serve. The State suggested in its oral arguments before this Court that juror Donnelly was qualified only after a full panel of 42 prospective jurors had been qualified, but the transcript appears to contradict that suggestion. However, our own review of the transcript reveals that the trial court later excused this juror after the State, “out of an abundance of caution,” urged that the juror be excused and the defense concurred. Because it appears that Butts‘s suggestion that the juror was ultimately found qualified to serve is false, we find no error.
5. Butts argues that juror Osborne should have been excused for cause because he was serving as City Marshal and had formerly
6. Butts contends that, because the victim had been an employee of the Department of Corrections, all persons who were employed by the Department of Corrections or who were related to such persons should have been disqualified as potential jurors. However, correctional officers are not subject to the automatic disqualification rule of Hutcheson v. State,11 and “[b]lanket disqualification of jurors based solely upon their membership in a group to which the victim belonged is not required.”12
7. The trial court denied Butts‘s motion for a change of venue at the conclusion of voir dire, commenting, “I really didn‘t hear anybody know much about [the case]. . . .” A change of venue was not required simply because a large number of persons in the county were employed by the Department of Corrections.13 “A capital defendant seeking a change of venue must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors.”14 We find, upon our review of the record and transcript, that neither showing was made and, accordingly, that the trial court did not abuse its discretion in deny-
8. Trial counsel testified in the evidentiary hearing held on remand that he made a strategic decision not to question potential jurors about their views on gangs because he intended to focus attention on Butts‘s co-perpetrator as a gang member and because he thought drawing premature attention to the issue of gangs would have been counterproductive. This strategic decision was reasonable and, accordingly, Butts‘s claim that his trial counsel rendered ineffective assistance in making that decision fails.16
Guilt/Innocence Phase
9. Pretermitting the question of waiver raised by trial counsel‘s failure to raise an objection to certain photographs of the victim‘s wounds, we find that the photographs, the originals of which appear in the record of Butts‘s co-perpetrator‘s trial, were admissible.17 We also find that, because the photographs were admissible, trial counsel did not render ineffective assistance by failing to raise meritless objections to them.18
10. The trial court did not err by refusing to suppress a tape-recorded statement given by Butts after his arrest. According to testimony heard by the trial court, Butts was informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)19 at the scene of his arrest. The tape recording of Butts‘s statement shows that Butts was again informed of his Miranda rights just before he made the statement in question. Also on the recording were Butts‘s statements that he was able to read and write, that he was not intoxicated, that he understood his rights, and that he was making his statement voluntarily. There is nothing in the transcript to suggest that he ever sought to terminate his interview or requested the presence of an attorney. Although investigators made harsh statements about Butts‘s situation to him,20 we agree with the trial court that his statement was voluntary, even under the requirements of
11. The trial court instructed the jury not to read the newspaper and not to watch anything on television related to Butts‘s case. Butts cannot now complain that the jurors should have been instructed not to watch any television at all, because he failed to request such an instruction at trial.22 Furthermore, because there is no evidence that any of the jurors watched any television programs that might have affected their decision making, Butts cannot show the prejudice necessary to support a claim that his trial counsel rendered ineffective assistance in failing to make such a request.23
12. The trial court did not err by denying Butts‘s motion to bar prejudicial security measures after ruling that only four bailiffs would be present and after informing Butts that he could raise the issue again if security became excessive, and Butts has shown nothing to suggest that the trial court‘s instructions were not followed.24 Although not necessary to our holding here, we also note that the trial court‘s instructions suggested that only two of the four bailiffs to be present in the courtroom would be in uniform, although four uniformed officers would be with the jury at night.
13. The trial court did not err by denying Butts‘s prospective motion to exclude uniformed law enforcement and Department of Corrections officers from the courtroom. The trial court informed Butts that it would be vigilant for any excessive or orchestrated presence of persons in uniform, and Butts has failed to show that any such danger ever materialized.25
14. Butts contends that the trial court erred by refusing, without first holding a hearing on the reliability of polygraph science, his request to introduce during the guilt/innocence phase the results of a polygraph of his co-perpetrator. Butts argues that the trial court was required to hold such a hearing under the rationale of Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982).26 This argument is flawed in that it ignores that the scientific methodology in question in Harper had not yet been ruled upon by the courts of this State. Polygraph evidence, absent the stipulation of the parties, has been consistently and recently held inadmissible in Georgia courts.27 Butts‘s reliance on Harper is further flawed in that
15. We have held that, even in the guilt/innocence phase of a death penalty trial,
some facts about the victims, including, possibly, some of their personal characteristics, will inevitably be developed, not only because the jurors must be provided “those details of context that allow them to understand what is being described,” Payne [v. Tennessee, 501 U. S. 808, 841 (111 SC 2597, 2617, 115 LE2d 720) (1991)] (Souter, J., concurring), but also because evidence relating to the victims’ character and personality may be probative of critical aspects of the trial. . . .30
Here, the incidental characterizations of the victim as a nice and charitable person and as being a person who attended services at a religious establishment were relevant to the facts of the crime. The victim offered a ride to persons pretending to be in need, and the victim was identified, in part, by the semi-formal clothing he was wearing after a religious service. Likewise, the victim‘s father‘s statement in response to a question by the State about how the victim‘s remains were identified was an incidental outgrowth of the relevant fact that the father had, in an extraordinary and tragic turn of events, discovered his own son‘s body moments after the murder. Pretermitting the waiver involved in the fact that most of the contested testimony and comments were not objected to, we find that they were not improper.31
Because the testimony and comments complained of by Butts were not improper in their context, Butts‘s trial counsel did not render ineffective assistance in failing to object to them.32
16. Counsel did not render ineffective assistance by expressing
17. Butts has failed to show that he suffered any prejudice as the result of his trial counsel‘s failure to raise more objections to leading questions, and, accordingly, his argument that counsel thereby rendered ineffective assistance fails.35
18. Pretermitting the issue of waiver involved in Butts‘s failure to request a charge on mere presence, we conclude that, because “[t]he trial court‘s charge, as actually given, was full and fair and substantially covered all the legal principles relevant to the determination of appellant‘s guilt[,]” the trial court‘s failure to charge specifically on mere presence was not reversible error.36
Because we find that the trial court‘s charge was adequate as given, Butts cannot show that his trial counsel‘s failure to request a charge on mere presence and to reserve objections to the trial court‘s charges as given created prejudice of constitutional proportions; accordingly, his claim that his counsel rendered ineffective assistance with regard to the disputed charge fails.37
Sentencing Phase
19. Butts contends that evidence about the Folks gang and gangs in general was irrelevant to the issues in the sentencing phase of his trial and that presentation of the evidence violated his freedom of speech and his freedom of association under the Constitution of the United States. The evidence in question suggested that Butts was involved with the Folks gang and that the gang required acts of violence for promotion within its ranks. We conclude that, because the “violent nature of that gang was relevant to the issues to be decided by the jury during the sentencing phase of [Butts‘s] trial,” the contested evidence was not an invitation for the jury to punish Butts based upon his exercise of constitutional rights and, accordingly, that the evidence was admissible.38 Finally, although we find no error, we
Because the evidence about the Folks gang and gangs in general was not improper, Butts‘s trial counsel did not render ineffective assistance by failing to object to it.40
20. Butts argues that an investigator gave testimony during the sentencing phase of Butts‘s trial about gangs that would have been improperly perceived by the jury as being expert testimony. This issue is waived because Butts raised no objection at trial.41 Furthermore, we find nothing improper in the testimony, as it appears from the transcript that the witness would have qualified easily as an expert on gangs.42
21. Evidence showing that while incarcerated Butts had set a fire, had fought with another inmate, and had “O.G. [Original Gangster] Butts” written on his shoes was not objected to during the sentencing phase of Butts‘s trial and, therefore, cannot be complained of now on appeal.43 Furthermore, we note that the evidence was not improper.44
Because the evidence complained of here was not improper, Butts‘s trial counsel did not render ineffective assistance by failing to object to it.45
22. Butts failed to object during the sentencing phase of his trial to the evidence of crimes he committed as a juvenile, and, therefore, he cannot complain now on appeal.46 We note, however, that such evidence is not improper.47
23. The trial court did not err by refusing to permit Butts to present evidence to the jury during the sentencing phase of his trial about execution by electrocution.48
24. Butts‘s trial counsel testified in a hearing held on remand that they contacted Butts‘s family members in the hope that some of them would testify on Butts‘s behalf during the sentencing phase. Counsel testified that Butts‘s mother refused to testify. Counsel fur-
25. Butts contends that his lead counsel rendered ineffective assistance during his sentencing phase closing argument by informing the jury that he had been appointed by the trial court as Butts‘s counsel and that co-counsel had never before participated in a capital trial. We conclude that counsel‘s effort through these comments to apologize for any perceived deficiencies in counsel‘s conduct of Butts‘s defense was a reasonable exercise of professional judgment.50
We also conclude that Butts‘s trial counsel did not render ineffective assistance by informing the jury that he believed the jury would easily find that Butts had committed the murder during the commission of an armed robbery. Because the jury had just found Butts guilty of armed robbery beyond a reasonable doubt in the guilt/innocence phase, it was reasonable for counsel to concede that point and to argue for a sentence less than death based on other factors.51
26. Within the context of the sentencing phase charges as a whole, the trial court‘s charge that the jury should let its “verdict” reflect any finding it might make regarding a statutory aggravating factor would not have misled the jury as to its duties or the law.52
27. The trial court‘s failure to re-charge the jury on the credibility of witnesses during the sentencing phase was not reversible error.53
28. The trial court did not err by failing to charge the jury on how it should weigh non-statutory aggravating circumstances. Instead, the court properly charged the jurors that they were authorized to impose a sentence less than death for any reason or no reason at all.
29. The trial court did not err in failing to charge the jury that its findings regarding mitigating circumstances need not be unanimous. The trial court, instead, properly charged the jury that it could
30. Because he has failed to show any reversible error in the trial court‘s charges to the jury, Butts cannot show the prejudice necessary to support his claim that his counsel rendered ineffective assistance in failing to reserve objections to the charges.55
Sentence Review
31. Butts‘s counsel argued orally before this Court that execution by electrocution is cruel and unusual punishment. Because Butts‘s trial counsel failed to obtain a ruling from the trial court on this issue, it is waived for purposes of appeal.56 Furthermore, counsel may not add enumerations of error by way of oral argument.57
32. Upon our review of the record and transcript, we find that the sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor.58
33. Butts argues that his death sentence is disproportionate punishment for his crimes. We disagree.
Although the trial judge‘s report indicates that the evidence did not “foreclose all doubt” in this case, we note that the evidence supporting the jury‘s finding of guilt was very strong. The fact that Butts asked the victim for a ride, even though he had driven his own automobile to the store, shows that he was involved in the motor vehicle hijacking from the beginning. The evidence also suggested that Butts carried the shotgun with him into the store as he sought out a victim. Testimony at trial showed that Butts had worked with the victim previously, suggesting that Butts intended from the beginning to murder the victim in order to ensure the victim‘s silence.59 Several of Butts‘s former jail mates testified that he had admitted being the triggerman. Evidence presented during the sentencing phase showed that Butts had a history of criminal conduct. These circumstances all might reasonably have urged the jury to impose a death sentence.60
Our proportionality review “includes special consideration of the
We find, considering both the crime and the defendant, that the death sentence imposed in this case is neither excessive nor disproportionate to the penalties imposed in similar cases in Georgia.62 The cases appearing in the Appendix support this conclusion in that each involves an intentional killing committed during the commission of an armed robbery or a motor vehicle hijacking.
Judgment affirmed. All the Justices concur.
APPENDIX.
King v. State, 273 Ga. 258 (539 SE2d 783) (2000); Esposito v. State, 273 Ga. 183 (538 SE2d 55) (2000); Wilson v. State, 271 Ga. 811 (525 SE2d 339) (1999); Lee v. State, 270 Ga. 798 (514 SE2d 1) (1999); Whatley v. State, 270 Ga. 296 (509 SE2d 45) (1998); Bishop v. State, 268 Ga. 286 (486 SE2d 887) (1997); Jones v. State, 267 Ga. 592 (481 SE2d 821) (1997); Carr v. State, 267 Ga. 547 (480 SE2d 583) (1997); McClain v. State, 267 Ga. 378 (477 SE2d 814) (1996); Green v. State, 266 Ga. 439 (469 SE2d 129) (1996); Crowe v. State, 265 Ga. 582 (458 SE2d 799) (1995); Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995); Christenson v. State, 262 Ga. 638 (423 SE2d 252) (1992); Meders v. State, 261 Ga. 806 (411 SE2d 491) (1992); Ferrell v. State, 261 Ga. 115 (401 SE2d 741) (1991); Stripling v. State, 261 Ga. 1 (401 SE2d 500) (1991); Cargill v. State, 255 Ga. 616 (340 SE2d 891) (1986); Ingram v. State, 253 Ga. 622 (323 SE2d 801) (1984).
BENHAM, Chief Justice, concurring.
Appellant, by contending that his counsel was ineffective because he showed respect for and friendship with opposing counsel, raises an interesting question: is civility incompatible with advocacy? The main opinion rightly resolves this enumeration of error by holding that it is professionally reasonable for civility to be a part of a lawyer‘s strategic plan in the trial of a case. Being in total agreement with the main opinion, I write separately to further explain the role of civility.
The practice of law is an honorable profession that requires a high standard of conduct of its members. It is a high calling where competence, civility, community service, and public service are integral parts of the professional standards. It is not a profession where
Those who hold themselves out as lawyers should realize that they help shape and mold public opinion as to the role of the law and their role as lawyers. The law sets standards for society and lawyers serve as problem solvers when conflicts arise. To fulfill their responsibility as problem solvers, lawyers must exhibit a high degree of respect for each other, for the court system, and for the public. By doing so, lawyers help to enhance respect for and trust in our legal system. These notions of respect and trust are critical to the proper functioning of the legal process.
While serving as advocates for their clients, lawyers are not required to abandon notions of civility. Quite the contrary, civility, which incorporates respect, courtesy, politeness, graciousness, and basic good manners, is an essential part of effective advocacy. Professionalism‘s main building block is civility and it sets the truly accomplished lawyer apart from the ordinary lawyer.
Civility is more than good manners. It is an essential ingredient in an effective adversarial legal system such as ours. The absence of civility would produce a system of justice that would be out of control and impossible to manage: normal disputes would be unnecessarily laced with anger and discord; citizens would become disrespectful of the rights of others; corporations would become irresponsible in conducting their business; governments would become unresponsive to the needs of those they serve; and alternative dispute resolution would be virtually impossible.
To avoid incivility‘s evil consequences of discord, disrespect, unresponsiveness, irresponsibility, and blind advocacy, we must encourage lawyers to embrace civility‘s positive aspects. Civility allows us to understand another‘s point of view. It keeps us from giving vent to our emotions. It allows us to understand the consequences of our actions. It permits us to seek alternatives in the resolution of our problems. All of these positive consequences of civility will help us usher in an era where problems are solved fairly, inexpensively, swiftly, and harmoniously. The public expects no less and we must rise to the occasion in meeting those expectations.
DECIDED APRIL 30, 2001.
Green B. Moore III, Christopher D. Huskins, for appellant.
Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V.