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Butler v. State

Court of Criminal Appeals of Tennessee, Knoxville

September 18, 2019


          Session March 26, 2019

          Appeal from the Criminal Court for Hamilton County No. 299585 Don W. Poole, Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          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 of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.



         I. Factual Background

         The 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.

         A jury 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 Simpson.
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).

         After 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.

         At the 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 very accurate."

         Timothy 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.

         Westfield 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.

         John 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.

         Simpson 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 was gold.

         Simpson 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.

         Simpson 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.

         Simpson 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.

         On 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.

         On 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.

         Trial 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.

         Post-conviction 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.

         Trial 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 ...

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