Butler v. State

541 S.E.2d 653, 273 Ga. 380, 2001 Fulton County D. Rep. 498, 2001 Ga. LEXIS 108
CourtSupreme Court of Georgia
DecidedFebruary 5, 2001
DocketS00A1425
StatusPublished
Cited by102 cases

This text of 541 S.E.2d 653 (Butler v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. State, 541 S.E.2d 653, 273 Ga. 380, 2001 Fulton County D. Rep. 498, 2001 Ga. LEXIS 108 (Ga. 2001).

Opinions

Hines, Justice.

Jesse Butler appeals his convictions for malice murder, three counts of armed robbery, aggravated assault, burglary, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Samuel Maurice Tucker II, the wounding of Shalawn Shellington and the burglary of her residence, and the robbery at gunpoint of Tucker, Octavia Shellington, and Pascal Greene. Butler challenges the sufficiency of the evidence; the admission of certain photographic and other physical evidence; the sufficiency of the State’s showing of alleged similar conduct; the proffer of testimony of a State’s witness on the ground that such testimony was perjured; certain cross-examination by the State; the State’s closing argument; the court’s failure to grant a mistrial because of alleged improper prosecutorial comment; the court’s recharge to the jury; and the effectiveness of trial counsel. Finding the challenges to be without merit, we affirm.1

In the early morning hours of December 5, 1995, Butler and Ricky Swain went to the home of Shalawn Shellington and Greene, a known drug dealer. The men approached Shalawn’s sister, Octavia Shellington, and her friend, Tucker, sitting in a parked car outside [381]*381the home. Butler asked for a light and then produced a handgun and demanded money. Tucker, who was a soldier, responded that he had only ten dollars. Octavia was pulled from the car, and Tucker was ordered out of the vehicle. Tucker was hit in the head with the butt of a pistol and forced to the ground, and Butler pulled off Octavia’s jewelry. Octavia observed that both of the assailants were wearing dark clothing and masks. The men then forced the couple at gunpoint inside the home.

Once inside, Butler and Swain kicked open or pushed in a bedroom door and found Greene and Shalawn asleep. The men pointed handguns at them and demanded money, which they took from a dresser. Butler, who was doing most of the talking, demanded more money. Tucker and Octavia were forced to lie on the bed with Shalawn. Greene was hit with a pistol and taken into the bathroom. Butler told Tucker to “Lay down, cover your head. Don’t look at me or I’m gonna pop you.” Tucker responded, “I’m not looking at you.” Butler then fired his weapon, fatally shooting Tucker in the head and wounding Shalawn in the arm. Butler again demanded more money from Greene, threatening to “pop” him. Then Butler and Swain ripped the telephones out of the walls and left.

Earlier, on the evening of December 4, 1995, Butler and Swain and Constance Gunter had attended a birthday party at an apartment complex close to the scene of the crimes. At the party, Butler and Swain were overheard talking about going to do a “jack” or a “lick,” which the hearer knew was street slang for robbery. Butler was dressed in dark clothing, like “camouflage utilities.” As Butler and his group left the party, one of them dropped a firearm and Butler commented, “Maybe you shouldn’t drop your 45, ’cause it’s kind of like bad luck.” Butler was known to carry a handgun, “either a nine or a 45.”

Initially, Butler and Swain attempted to give some of the stolen jewelry to Gunter, eventually telling her that they had obtained the jewelry by committing a robbery. The jewelry was then given to Gunter’s sister, Alisa Payne, who was also Butler’s girlfriend. After conducting an investigation of the crime scene, the police executed search warrants for the homes of Swain, Gunter, and Payne. The searches uncovered items of jewelry taken from Pascal Greene and Shalawn Shellington.

At trial, a jailhouse informant testified that Butler told him about the fatal incident. Butler related that Swain was in the bathroom “detaining somebody,” that “things got out of hand,” and that the soldier would still be alive if he “didn’t try to be a hero.”

Butler testified and denied involvement in the crimes.

1. Butler contends that the State failed to prove his guilt beyond a reasonable doubt, asserting principally that the only direct evi[382]*382dence of his participation in the crimes was the testimony of the jailhouse informant, Coma, and that such testimony was motivated by Coma’s desires for revenge and to better his own situation and, therefore, was not credible. But, it was for the jury to assess Coma’s credibility as well as that of the other witnesses, to resolve any conflicts in the evidence, and to arrive at a determination of the facts. Bowden v. State, 270 Ga. 19, 21 (4) (504 SE2d 699) (1998); Hodnett v. State, 269 Ga. 115, 116 (1) (498 SE2d 737) (1998). The evidence was sufficient for the jury to find Butler guilty beyond a reasonable doubt of malice murder and the related crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Butler contends that the State was allowed to impermissibly place his character in issue by the admission into evidence of State’s Exhibit 60, a photograph of Butler and Payne with a toy gun. But, Butler objected below on the bases of relevance and, arguably, on lack of foundation; he never asserted the improper injection of his character. Therefore, he may not raise it for the first time on appeal. Richardson v. State, 256 Ga. 746, 747 (4) (353 SE2d 342) (1987). See also Williams v. State, 262 Ga. 422, 424 (6) (420 SE2d 301) (1992).

3. Butler’s contention that the trial court erred in admitting into evidence the jewelry seized from Alisa Payne is unavailing. The jewelry was admitted without objection. Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992). What is more, contrary to Butler’s assertion, there was evidence tying the items to the crimes.

4. Butler also fails in his assertion that the State used the perjured testimony of Coma to obtain his convictions. There is no showing that the testimony was perjured. And to the extent that there may have been inconsistencies in Coma’s testimony, such inconsistencies, as well as Coma’s credibility, were for the jury to decide. Bowden v. State, supra at 21 (4); Hodnett v. State, supra at 116 (1).

5. Butler contends that the State was allowed to impermissibly cross-examine him regarding his first offender disposition in violation of due process and Matthews v. State, 268 Ga. 798, 801 (493 SE2d 136) (1997). He argues that the State should have put him on notice of its intent to bring up his first offender disposition, and that he should have been given a hearing to determine its admissibility. However, the contention and arguments are unavailing.

Butler failed to object at any time during the subject cross-examination. It was not until after the close of evidence that Butler moved for a mistrial, relying on Matthews v. State. Thus, Butler did not make the required contemporaneous objection in order to preserve his complaint for review on appeal. Garey v. State, 273 Ga. 133 (539 SE2d 123) (2000); State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806) (1997). What is more, Matthews involved the court permitting the prosecutor to impeach the defense witness with his first offender [383]*383record by raising it during cross-examination of the witness and then by having the record of the plea admitted into evidence.

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Bluebook (online)
541 S.E.2d 653, 273 Ga. 380, 2001 Fulton County D. Rep. 498, 2001 Ga. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-state-ga-2001.