Court of Criminal Appeals of Tennessee, Knoxville
Session March 26, 2019
from the Criminal Court for Hamilton County No. 299585 Don W.
Petitioner, Harold Francis Butler, III, appeals the Hamilton
County Criminal Court's denial of his petition for
post-conviction relief from his convictions of first degree
felony murder, attempted first degree premeditated murder,
attempted especially aggravated robbery, and employing a
firearm during the commission of a dangerous felony and
resulting sentence of life plus thirty-one years. On appeal,
the Petitioner contends that the State violated his
constitutional rights by conducting an unduly suggestive
identification procedure that rendered the identification
unreliable and by eliciting false testimony from a key
witness at trial. He also raises numerous allegations of
ineffective assistance of trial counsel and contends that he
is entitled to a new trial under the cumulative error
doctrine. Based upon the record and the parties' briefs,
we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Brennan Maureen Wingerter (on appeal), Knoxville, Tennessee,
and Brian Pearce (at hearing), Chattanooga, Tennessee, for
the appellant, Harold Francis Butler, III.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; M. Neal
Pinkston, District Attorney General; and Cameron Williams,
Assistant District Attorney General, for the appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Camille R. McMullen and Timothy L. Easter, JJ., joined.
MCGEE OGLE, JUDGE
Hamilton County Grand Jury indicted Steven Ballou, Unjolee
Moore, John Simpson, and the Petitioner for the first degree
felony murder of Bernard Hughes, the attempted especially
aggravated robbery of Hughes, the attempted first degree
premeditated murder of Timothy Westfield, and employing a
firearm during the commission of a dangerous felony. The
charges resulted from a failed robbery that was committed by
several masked men on the night of June 28, 2010.
convicted the Petitioner of the indicted offenses. On direct
appeal of his convictions, this court summarized the proof at
trial as follows:
[O]n the evening of June 28, 2010, Timothy Westfield, Myra
Collier, and Cindy Cross were visiting their friend, Bernard
Hughes, at his apartment on Oakwood Drive in Chattanooga.
Shortly before 11:00 p.m., someone knocked on Mr.
Hughes's front door. Mr. Hughes looked through the
peephole on the door and turned back to Mr. Westfield with a
"peculiar" look on his face. Mr. Hughes then opened
the front door. Mr. Westfield testified that he saw two men
standing outside the front door; one man, later identified as
the [Petitioner], was wearing a ski mask, a black baseball
cap, a black jacket, and black pants, and that man ordered
Mr. Hughes to "lay it down," which Mr. Westfield
interpreted to mean that the men were there to rob Mr.
Hughes. Mr. Westfield identified the other man as John
Mr. Hughes immediately ran outside and closed the front door
behind him. Mr. Westfield instructed Ms. Collier and Ms.
Cross to go upstairs, and Mr. Westfield hurried outside. As
soon as Mr. Westfield appeared outside, he noticed that Mr.
Hughes was attempting to fight off both of the would-be
robbers. The [Petitioner] then raised a handgun and fired two
shots at Mr. Westfield, striking him in his left forearm and
right ring finger. Mr. Westfield briefly lost consciousness.
When he regained consciousness, he saw a silver Nissan Maxima
pull up, saw someone get into the Maxima, and saw the car
pull away. Mr. Westfield attempted to render aid to Mr.
Hughes, who was lying in a pool of blood on the front porch
just outside his front door, and Mr. Westfield yelled for Ms.
Collier and Ms. Cross to call 9-1-1. Mr. Westfield retrieved
a blanket from the sofa in Mr. Hughes's apartment and
used it to cover Mr. Hughes's body. The medical examiner,
Doctor James Metcalfe, testified that gunshot wounds to Mr.
Hughes's head and chest caused his death and that the
manner of death was homicide.
Mr. Westfield testified that he had never seen Mr. Simpson
prior to June 28 but that he had seen the [Petitioner] on
several prior occasions, including during the time period in
which both the [Petitioner] and Mr. Westfield had attended
barber college together. Mr. Westfield admitted at trial that
he initially told law enforcement officers that he did not
know either of the men who attempted to rob Mr. Hughes, but
he later identified the [Petitioner], explaining that both he
and the [Petitioner] have very distinctive eyes and noses.
Mr. Westfield stated that he was "an artist" and
that he paid "very close attention to detail." Mr.
Westfield explained that he and the [Petitioner] both share a
"high bridge" on their noses, which, according to
Mr. Westfield, is uncommon among African-Americans and is
usually a sign of "Indian heritage."
Chattanooga Police Department ("CPD") Officer Ken
Burnette testified that, when he responded to the crime scene
on June 28, he collected two .45-caliber shell casings and
one live round of .45-caliber ammunition. He also collected
one size-eight athletic shoe and a white baseball cap. He
later processed a gold Nissan Maxima owned by Unjolee Moore.
In the trunk of the Maxima, Officer Burnette found a pair of
size eight-and-a-half Jordan athletic shoes and a ski mask,
and he located a light blue bandana on the rear floorboard of
the vehicle. Mr. Westfield testified that the size-8 shoe
collected from the crime scene belonged to the [Petitioner].
Ms. Collier explained that Steven Ballou was her ex-boyfriend
and that she knew Mr. Moore only by association. Ms. Collier
recalled that on one prior occasion, Mr. Moore and Mr. Ballou
had stopped by Mr. Hughes's apartment when Ms. Collier
was visiting him. Ms. Collier testified that she did not know
either Mr. Simpson or the [Petitioner].
John Simpson testified as a witness for the State and denied
that he knew who had killed Mr. Hughes. Over the
[Petitioner]'s objection, the trial court allowed the
prosecutor to introduce the prior recorded statement Mr.
Simpson made to law enforcement officers on July 15, 2010, in
which Mr. Simpson stated that the [Petitioner] had, in fact,
shot and killed Mr. Hughes.
CPD Sergeant Michael Wenger testified that, following an
interview of Mr. Moore, he obtained arrest warrants for Mr.
Simpson and the [Petitioner]. The [Petitioner] turned himself
in to authorities on July 14, and Mr. Simpson was arrested on
that same date. Sergeant Wenger interviewed Mr. Simpson on
July 15 after fully advising him of his rights, and Mr.
Simpson executed a written waiver of those rights. Sergeant
Wenger testified that he did not threaten or coerce Mr.
Simpson and that he did not discuss any potential
"deals" with Mr. Simpson prior to his statement.
With this evidence, the State rested. Following the trial
court's denial of the [Petitioner]'s motion for
judgments of acquittal and a Momon colloquy, the [Petitioner]
chose not to testify but did elect to present proof. Doctor
Jeffrey Neuschatz, a professor of psychology at the
University of Alabama at Huntsville, testified as an expert
in the area of eyewitness identification. Doctor Neuschatz
addressed the fallacies inherent in eyewitness identification
and explained the concept of unconscious transference,
wherein a person views a suspect in a lineup and selects that
individual simply because the suspect looks familiar but not
because the suspect actually committed the crime.
State v. Harold Francis Butler, No.
E2014-00631-CCA-R3-CD, 2015 WL 2233122, at *1-2 (Tenn. Crim.
App. at Knoxville, May 11, 2015), perm. app. denied,
(Tenn. Sept. 17, 2015).
our supreme court denied the Petitioner's application for
permission to appeal, he filed a timely petition for
post-conviction relief. In his pro se petition and the three
amended petitions filed by counsel, the Petitioner alleged
various reasons he received the ineffective assistance of
counsel as well as a number of acts by the prosecution that
deprived him of due process.
evidentiary hearing, Officer Mark Hamilton of the CPD
testified for the Petitioner that part of his job duties
involved cellular technology. He stated that cellular
telephone companies sometimes recorded cellular telephone
tower communications and that based on the data, he could
identify the approximate location of a cellular device.
Officer Hamilton said that using historical records, he could
place a cellular telephone in a "sector" but could
not locate the telephone with great accuracy. He did not need
the actual device to locate the telephone. In 2010, AT&T
saved engineering data for ten days and sector data for one
year. He said that using the sector data, he could have
located a device but that the location would have been
measured in square miles and "wouldn't have been
Westfield, one of the victims in this case, testified that on
the night of the shooting, he had been at Bernard Hughes'
home about ten minutes when they heard a knock on the door.
Hughes opened the door, and Westfield saw the muzzles of two
guns being held by two men. Hughes ran outside, and Westfield
followed him. Westfield jumped toward the first person he
saw. Westfield later saw the Petitioner on the news and
recognized him as the person toward whom he jumped. Westfield
said that the Petitioner had cut Westfield's hair
previously and that they had an encounter at a gas station a
couple months before the shooting. The Petitioner was wearing
a ski mask at the time of the shooting, but Westfield was
able to recognize him from "something peculiar about his
eyes" and the bridge of his nose.
testified that four men were in the yard: himself, Hughes,
the Petitioner, and another man. As he dove toward the
Petitioner, he saw "two flashes and everything went
black." The next thing he remembered was seeing Hughes
lying in front of the front door. He saw a silver Nissan
Maxima pull up and "a black figure" come out from
behind Westfield's car. The figure got into the Maxima,
and the Maxima drove away. He recalled that the Petitioner
was wearing black and teal blue clothing. Westfield
acknowledged that the first time he identified the Petitioner
as one of the perpetrators was at the preliminary hearing.
Simpson, the Petitioner's codefendant, testified that he
was arrested on July 13, 2010, and gave a recorded statement
to the police a couple of days later. He spoke with Sergeant
Wenger for thirty or forty minutes before giving his recorded
statement. During that time, Sergeant Wenger told him certain
things Sergeant Wenger knew about the case. Namely, Sergeant
Wenger told him that the Petitioner was his primary focus and
that the police had found a boot and a shotgun. When Sergeant
Wenger began recording Simpson's statement, Simpson used
the information to say what Sergeant Wenger wanted him to
say. Simpson said that his statement was false and that he
gave the false statement because Sergeant Wenger told him
that he would get a fifteen-year sentence.
testified that he told Sergeant Wenger other stories before
Sergeant Wenger started recording. However, the sergeant did
not like what Simpson had to say, so he told Simpson
"exactly what he had and how he felt that those things
actually went." For example, Sergeant Wenger asked
Simpson about the Nissan Maxima. Simpson said the car was
black but learned just before the recording started that it
testified that he told Sergeant Wenger that he put on a mask
and knocked on Bernard Hughes's door. Sergeant Wenger
said the person who knocked on the door was not wearing a
mask, so Simpson changed his story. He also invented a story
about having a collision with another car on the way out of
the parking lot.
testified that he gave a second statement on August 3 in
which he told Sergeant Wenger that he and the Petitioner
buried a gun in the Petitioner's backyard. However, his
second statement also was false. Simpson had never been to
the Petitioner's home, and the police did not find any
guns or freshly-dug holes in the Petitioner's yard.
testified that the Petitioner's trial counsel did not ask
Simpson at trial about any of his lies to the police. Trial
counsel asked him if the Petitioner killed Bernard Hughes,
and the truthful answer to that question was no. Simpson
described some of the information he gave to police officers
in his various statements and said he learned the information
from Sergeant Wenger. He said he inserted the
Petitioner's involvement into the shooting because
"that's what [the police] wanted [him] to do"
in order to receive a sentence less than life in prison.
cross-examination, Simpson acknowledged sending a letter to
the district attorney general before the Petitioner's
trial. In the letter, he stated that there was a
"'strong gang presence in this case'" and
that the Petitioner and Ballou were "pushing" him
not to testify because they could receive life sentences.
However, he denied the veracity of the letter and said that
"I can put anything I want into a letter." He said
that he was stabbed in prison but that the stabbing had
nothing to do with gangs or the Petitioner. Simpson
acknowledged that the jury only heard a portion of his
statement to Sergeant Wenger. Specifically, the jury heard
the part of his statement in which he said he saw the
Petitioner shoot Hughes and heard the Petitioner admit to
shooting Hughes. He acknowledged that on cross-examination at
trial, trial counsel asked him if the Petitioner shot Hughes.
Simpson told trial counsel no.
redirect examination, Simpson acknowledged that he no longer
had a life sentence "hanging over his head." He
therefore had no reason to lie about the Petitioner's
involvement in the crimes.
counsel testified for the Petitioner that he was appointed to
represent the Petitioner in 2011 and that the Petitioner went
to trial in 2013 or 2014. Trial counsel had tried three or
four cases at the time of the Petitioner's trial, but
none of them were first degree murder cases. Trial counsel
acknowledged that he received a "considerable"
amount of discovery from the State, which he reviewed before
trial. He applied for an expert in identification but did not
seek to have an investigator appointed because he did not
think there was "any investigation that required the use
of an investigator." He and the Petitioner discussed an
alibi defense but ultimately decided against it. He did not
remember the Petitioner ever explicitly requesting that he
present an alibi. The Petitioner was "never definitive
as far as he was at a certain place," and trial counsel
did not think he had enough information to find the people
mentioned by the Petitioner or to corroborate an alibi.
counsel asked if trial counsel remembered the name
"Michelle Angel." At first, trial counsel said no.
However, he then said he thought she was associated with
Unjolee Moore, one of the Petitioner's codefendants.
Trial counsel did not speak with Myra Collier, who was at
Bernard Hughes' house at the time of the shooting. He
recalled the name "Ariel" being mentioned in some
of the codefendants' statements, but he did not try to
find or interview her. He also recalled that codefendants
Steven Ballou and Moore were accused in separate robberies
prior to their involvement in Hughes' death; however, he
did not interview anyone related to the other offenses to see
if there was a connection to the Petitioner.
counsel testified that he filed several motions before trial,
one of which related to the Petitioner's cellular
telephone. The issue was that the Chattanooga police examined
the telephone but never collected it. Trial counsel thought
that was significant and wondered if the police did not
collect the telephone because it contained exculpatory
information. He recalled ...