309 Ga. 755 FINAL COPY
S20A0870. BUTLER v. THE STATE.
BOGGS, Justice.
Appellant Patrick Dela Butler challenges his 2011 convictions
for malice murder and two firearms offenses in connection with the
shooting death of Darryl Walden. Appellant argues that the
evidence presented at trial was legally insufficient to support his
convictions, that the trial court made several evidentiary errors, and
that he was denied the effective assistance of counsel. As explained
below, the evidence presented at trial was legally sufficient to
support his convictions. However, the trial court applied the wrong
standard in admitting evidence of Appellant’s 2005 felony conviction
for obstructing a law enforcement officer during the first stage of the
bifurcated trial, and we cannot say that the admission of the
evidence was harmless. Accordingly, we vacate Appellant’s
convictions, and we remand the case to the trial court to apply the
correct standard and determine whether the prior felony conviction should have been admitted. We need not address Appellant’s other
enumerations of error at this time.1
1. The record of the trial shows the following. It was undisputed
that on the evening of August 17, 2009, Appellant pulled out a gun,
fired a single fatal shot at Walden, fled from the scene, disposed of
the gun, and then denied his involvement to a friend in the days
after the shooting. What was disputed was whether that shot was
1 Walden was killed on August 17, 2009. On October 27, 2009, a Richmond County grand jury indicted Appellant for malice murder, felony murder predicated on aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The trial court decided to bifurcate the trial of the felon-in-possession charge from the other charges, which were to be tried first. At the bifurcated trial from July 18 to 21, 2011, the jury found Appellant guilty on all counts. The trial court sentenced Appellant to serve life in prison without the possibility of parole for malice murder, five years consecutive for possession of a firearm during the commission of a felony, and five years consecutive for the felon-in-possession conviction. The court purported to merge the felony murder count into the malice murder conviction, but the felony murder count was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 373 (434 SE2d 479) (1993). On July 22, 2011, Appellant filed a motion for new trial, which he amended with new counsel on October 8, 2013. After an evidentiary hearing, on February 3, 2014, the trial court denied the motion. Appellant filed a timely notice of appeal. After a five-year delay, on March 28, 2019, the trial court held an additional hearing on the new trial motion to reconstruct the testimony of trial counsel from the original motion for new trial hearing that was missing from the transcript. The case was docketed in this Court to the April 2020 term and submitted for a decision on the briefs. fired in self-defense.
Two eyewitnesses testified, as did Appellant, that prior to the
shooting, Walden was sitting in front of an apartment at the Salem
Arms apartment complex in Augusta when Appellant approached
him and, after a brief exchange between Appellant and Walden,
Walden’s facial expression suddenly changed. It was at this point
that the testimony of the two eyewitnesses and Appellant began to
diverge.
According to Jennifer Smith, an eyewitness and Walden’s
girlfriend, Walden walked to Smith’s SUV, which she had just
parked, and Appellant followed close behind Walden and, standing
mere inches away, spoke aggressively into Walden’s ear. Walden
then pushed Appellant away, and the two began “tussling” for a few
minutes in front of Smith’s vehicle; punches were thrown but neither
man landed any significant blows. Walden grabbed Appellant and
slung him to the ground, pulling Appellant’s shirt off. At this point,
Appellant rose to his feet about five feet away from Walden and drew
a small black handgun from his waistband. Walden threw his hands up, and Appellant fired once at Walden, striking him in the chest,
before fleeing the scene. Smith admitted that she had never seen
Appellant before, that Walden had enemies, that it looked like
Appellant and Walden were having a misunderstanding before the
fight began, that she could not hear what Appellant and Walden
were saying, and that she did not see what occurred behind her SUV
before the fight began or when Appellant and Walden were on the
ground. During a police interview, Smith also stated that before the
fight began, Walden had pushed Appellant away “forcefully” and
Appellant had put his hands up in a confused manner.
The other eyewitness, Ronald Weaver, who was sitting across
the parking lot, gave a somewhat different account of events.
Weaver testified that he saw Appellant start the fight by grabbing
Walden, that the fight lasted about three or four minutes, and that
he thought Appellant and Walden were playing around until he saw
Appellant throw Walden to the ground, pull out a gun, and shoot
Walden as Walden stood up. Like Smith, Weaver testified that
Appellant then ran away. Weaver testified that the “aggressor” was the person who knocked the other man to the ground, that there was
no fighting or wrestling going on when Appellant shot Walden, that
he never saw Walden on top of Appellant, and that he never saw
Appellant try to disengage from the fight.
Appellant testified in his own defense. The defense theory was
that Walden mistook Appellant for Ryan Davis, who testified that
he and Walden were enemies, that he was incarcerated at the time
of the shooting, and that Walden would act tough and cause trouble
when around friends. According to Appellant, he was visiting his
sister and her children at her apartment at Salem Arms when he
decided to take a walk to ease the pain in his ankle from a childhood
sports injury. Having babysat for his sister’s children before and not
wanting to leave his gun in the apartment with the children, he took
it with him on the walk. While out walking, Walden called Appellant
over, asking him for a light for his cigarette, and Appellant agreed,
but when Appellant approached, Walden’s demeanor suddenly
changed, becoming hostile. Walden demanded to know why
Appellant was there, cursed at him profusely, called him “Ryan,” and said that he had no business being there. Appellant testified
that when he tried to back away, Walden cut him off and continued
to call him “Ryan” and curse him, causing Appellant to throw his
hands up in confusion. Walden continued to berate Appellant and
punched him in the face. The two then fought, and Walden grabbed
the back of Appellant’s oversized shirt and pulled it over Appellant’s
head so he could not see. Appellant’s shirt came off as he fell to the
ground and Walden got on top of him. Now shirtless, Appellant
worried that Walden could see Appellant’s gun and that Walden was
going to kill him with it. Appellant also felt Walden’s knee pressing
the gun into Appellant’s side. Terrified that Walden would grab the
gun and shoot him, Appellant mustered the strength to push Walden
off and get up, at which point Walden lunged toward him. Appellant
testified that he believed that Walden was going for his gun, and in
response, he pulled out his gun, fired one shot at Walden, and ran
away scared for his life. Appellant acknowledged that he denied his
involvement in the shooting to his friend Hope Hunter out of fear
that she would tell someone, which he worried could endanger his friends or family.
The other witness testimony at the trial did not strongly favor
one story over another. The medical examiner explained that the
lack of stippling or soot on Walden’s skin meant the gun was fired
from at least 18 inches away, but he admitted that Walden’s shirt
could have prevented soot and stippling from appearing on the body,
that he never received the shirt for testing, and that he thus could
not determine how far away Walden was when Appellant pulled the
trigger. Hunter testified that in the days following the shooting,
Appellant told her he did not shoot Walden. However, she
acknowledged that she received a $1,000 reward for assisting police
in setting Appellant up to be arrested. Walden’s mother, Dorothy
Dunbar, testified that Walden was “God-fearing” and a hard worker
but also that he had some trouble with some others from the
neighborhood and had pled guilty to aggravated assault for shooting
at an occupied vehicle. The State also presented evidence that in
2005, Appellant pled guilty to obstruction of a law enforcement
officer, a felony. Appellant argues that the State failed to present sufficient
evidence to disprove his claim of self-defense beyond a reasonable
doubt. However, the evidence presented at trial and summarized
above was sufficient to enable a rational trier of fact to conclude
beyond a reasonable doubt that Appellant did not act in self-defense
and instead was guilty of malice murder. See Jackson v. Virginia,
443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Shaw
v. State, 292 Ga. 871, 872 (742 SE2d 707) (2013) (“[I]ssues of witness
credibility and justification are for the jury to decide, and the jury is
free to reject a defendant’s claim that he acted in self-defense.”
(citation and punctuation omitted)). And even though Appellant
does not challenge the sufficiency of the evidence with respect to his
other convictions, we have — consistent with our current practice in
murder cases — reviewed the evidence presented at trial and
conclude that it was sufficient to enable a rational jury to conclude
beyond a reasonable doubt that Appellant was also guilty of the other crimes for which he was convicted.2
2. Appellant argues that the trial court erred in admitting
evidence of his 2005 felony conviction for obstructing a law
enforcement officer during the first phase of the bifurcated trial. He
contends — and the State concedes — that the trial court erred by
applying the wrong legal standard in deciding whether to admit the
evidence. We agree.
(a) The indictment charged Appellant with possession of a
firearm by a convicted felon based on evidence of Appellant’s 2005
felony conviction for obstructing a law enforcement officer. The trial
court bifurcated the trial so that the jury would not learn about the
felon-in-possession charge and Appellant’s prior felony conviction
until after deciding the other charges. During the first phase of the
bifurcated trial, after the State rested and before the defense
presented its case, the State sought a ruling that should Appellant
2 We remind litigants that the Court will end its practice of considering
sufficiency sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, 309 Ga. 385, 399 (4) (846 SE2d 83) (2020). The Court began assigning cases to the December term on August 3, 2020. testify, the State would be allowed to impeach him with evidence of
the 2005 felony obstruction conviction, arguing it was probative
because it was “proof positive that [Appellant] was not acting in self-
defense on the day in question.” Appellant objected that doing so
would impermissibly put his character at issue. The trial court
reserved ruling to see how the defense presentation played out and
whether the “door [was] open[ed]” to admit evidence of the prior
conviction for its bearing on Appellant’s “credibility, his conduct, [or]
character.”
Appellant later testified, and in the middle of his direct
examination, the State asked for a bench conference to argue for the
admission of evidence of the 2005 felony obstruction conviction
during cross-examination. Appellant again objected, arguing that
the 2005 felony obstruction conviction had nothing to do with
truthfulness and was not admissible as a similar transaction. The
State responded that it was not offering the evidence as a similar
transaction but instead that former OCGA § 24-9-84.1 controls,
which the State asserted allows admission of a prior conviction if “the probative value outweighed the prejudicial effect” of its
admission. The State argued that the evidence was probative
because it rebutted Appellant’s self-defense theory that “he was
acting peacefully that night.” The trial court ruled:
My concern is this now that I’ve heard the testimony, here you have a defendant who has testified that he was scared. Has testified that he was carrying a gun in his waistband. He says for the reason that he did not want to leave it at the apartment because his sister’s children were there. And the same weapon is pulled and used in the death. I think it [evidence of the 2005 felony obstruction conviction] does have probative value at this point so I’m going to allow that. I find that it does — that the probative value will outweigh any prejudicial effect. I’ll allow it.
Appellant moved for a mistrial, which was denied.
On cross-examination, the State asked Appellant about the
prior conviction:
STATE: Okay. Now this is not your first brush with the law, is it? APPELLANT: No, sir. STATE: In fact, in 2005 you were convicted of felony obstruction of a law enforcement officer were you not? APPELLANT: Yes, sir, I was. STATE: And that crime has to do with offering, threatening or doing violence against a law enforcement officer, does it not? APPELLANT: Yes, sir, to a certain extent it does. STATE: Okay. And you in fact pled guilty to that on 19 October 2005? APPELLANT: Yes, sir. STATE: To offering violence or doing violence to a law enforcement officer? APPELLANT: Yes, sir. STATE: In the lawful discharge of his duties? APPELLANT: Yes, sir. STATE: In other words a police officer out there doing his job? APPELLANT: Yes, sir. STATE: You were convicted of obstructing that? APPELLANT: Yes, sir.
At the close of the first phase of the bifurcated trial, the State
introduced into evidence certified copies of the 2005 indictment and
plea, which indicated that the conviction was based on kicking an
officer.
(b) The trial court failed to apply the proper standard for
admitting a defendant’s prior conviction to impeach him. The old
Evidence Code applied to Appellant’s 2011 trial. Former OCGA § 24-
9-84.1 (a) (2) said:
Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.
(2006) OCGA § 24-9-84.1 (a) (2) (emphasis supplied).3 Under that
statute, the trial court was required “to make an on-the-record
finding that the probative value of admitting a prior conviction
substantially outweigh[ed] its prejudicial effect” before admitting
evidence of the prior conviction. Clay v. State, 290 Ga. 822, 836 (725
SE2d 260) (2012). See also Williams v. State, 299 Ga. 834, 839 n.2
(792 SE2d 336) (2016).
As noted above, the State concedes that the trial court erred by
applying the wrong standard in determining whether evidence of
Appellant’s 2005 felony obstruction conviction was admissible. The
trial court concluded that the probative value of that evidence
merely outweighed — not that it substantially outweighed — its
prejudicial effect to Appellant. See Clay, 290 Ga. at 836. The record
3 Impeachment by prior conviction under the current Evidence Code is
governed by OCGA § 24-6-609. We note that the balancing test set forth in OCGA § 24-6-609 (a) (1), where the witness is the accused, no longer requires a finding that the probative value of the evidence “substantially” outweighs its prejudicial effect to the accused. supports the State’s concession. The State specifically argued that
the evidence was admissible because its probative value merely
outweighed its prejudicial effect on Appellant, and in admitting the
evidence, the trial court stated on the record that the probative value
of the evidence merely outweighed its prejudicial effect.
Moreover, it appears that the trial court was confused as to the
purpose for which the evidence was being admitted: as a similar
transaction, as character evidence, or as impeachment. Despite the
State’s claim that it was offering the evidence for impeachment
under former OCGA § 24-9-84.1, in admitting the evidence, the trial
court’s ruling focused on what Appellant said about his possession
of the gun used in the fatal shooting (suggesting a similar
transaction analysis) and his fear of Walden and care for the safety
of his sister’s children (suggesting that Appellant opened the door to
character evidence) rather than how probative the conviction would
be in impeaching Appellant’s credibility. See Williams, 299 Ga. at
837 n.4 (explaining that former OCGA § 24-9-84.1 (a) (2) “sets forth
the standard for determining whether evidence of a previous crime is probative of the issue of the defendant’s credibility, not the issue
of his guilt as charged.” (emphasis supplied)). Thus, we agree that
the trial court applied the wrong legal standard in deciding whether
to admit the evidence of Appellant’s 2005 felony obstruction
conviction under former OCGA § 24-9-84.1 (a) (2) during the first
phase of the bifurcated trial.
(c) The State argues, however, that the evidence was
nonetheless admissible under the correct legal standard. The State
asserts that the trial court properly admitted the evidence because
Appellant testified that he was scared during the encounter with
Walden and his credibility was central to the case. Yet, it is not so
clear that the trial court would have abused its discretion had it
chosen to admit or exclude the evidence under the proper legal
standard.
As to probative value, once Appellant testified, his credibility
was certainly a key issue. See Williams, 299 Ga. at 837 n.4; Clay,
290 Ga. at 835 (noting that the “centrality of the credibility issue” is
a factor in whether to admit the prior conviction). See also Quiroz v. State, 291 Ga. App. 423, 428 (662 SE2d 235) (2008). Where the
defendant’s credibility is particularly important, the impeachment
quality of a prior felony conviction is rightly given great weight. See
Peak v. State, 337 Ga. App. 441, 443 (787 SE2d 792) (2016)
(affirming the admission of the defendant’s prior felony conviction
under former OCGA § 24-9-84.1 (a) (2) where there were only two
eyewitnesses, one being the defendant, in part because the
defendant’s credibility was “crucial”); Johnson v. State, 328 Ga. App.
702, 709 (760 SE2d 682) (2014) (giving the impeachment value of
evidence of a prior felony conviction great weight when the
defendant’s credibility was a central issue in the case). Appellant’s
testimony contrasted with that of the two eyewitnesses regarding
who was the aggressor in the fight, the eyewitnesses’ stories
conflicted on important details, and Appellant provided the only
testimony that purported to explain why the fight began in the first
place (i.e., mistaken identity). Appellant’s self-defense claim rested
heavily on his credibility. Yet, Appellant’s prior conviction was not
directly related to his credibility — that is, his truthfulness — beyond generalized notions that felons, as a group, are less truthful
than non-felons, as a group. See, e.g., Douglas v. State, 327 Ga. App.
792, 798 (761 SE2d 180) (2014) (admission of prior felony conviction
is just a general attack on credibility).
As to prejudice, on the one hand, the prior conviction and the
State’s questioning — asking whether Appellant committed violence
against a police officer just doing his job — raised the risk that the
jury would make the highly prejudicial and forbidden inference that
when Appellant shot the victim, he must have been acting in
conformity with his violent character rather than in self-defense
(i.e., propensity evidence). See Old Chief v. United States, 519 U. S.
172, 180-181 (117 SCt 644, 136 LE2d 574) (1997) (“‘Unfair prejudice’
within its context means an undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional
one. Such improper grounds certainly include . . . generalizing a
defendant’s earlier bad act into bad character and taking that as
raising the odds that he did the later bad act now charged (or, worse,
as calling for preventive conviction even if he should happen to be innocent momentarily).” (citation and punctuation omitted)). On the
other hand, neither Appellant’s testimony that he obstructed an
officer by offering or doing violence nor the indictment showing that
he “kicked” the officer (a point never mentioned in testimony) is
evidence of a crime similar to the crime for which Appellant was on
trial; this evidence, without more, is not necessarily so prejudicial
as to foreclose its admission. See Robinson v. State, 312 Ga. App.
110, 113 (717 SE2d 694) (2011) (noting that when conduct for which
the defendant is tried is dissimilar to that involved in the prior
convictions, the danger of prejudice is lessened). See also Frazier v.
State, 336 Ga. App. 465, 469 (784 SE2d 827) (2016) (affirming
admission of a prior rape conviction during a trial for rape with
proper findings); Johnson, 328 Ga. App. at 709 (affirming admission
of prior conviction for terroristic threats in rape trial with proper
findings).
In short, it is not apparent that it would have been an abuse of
discretion for the trial court to have either admitted or excluded the
2005 felony obstruction conviction under the proper standard. (d) The State also argues that even if, under the correct legal
standard, the trial court would have exercised its discretion to
exclude evidence of the 2005 felony obstruction conviction during the
first phrase of the bifurcated trial, we should still affirm Appellant’s
convictions because any error in admitting the evidence was
harmless in light of the “overwhelming” evidence of Appellant’s
guilt. We disagree.
“The test for determining nonconstitutional harmless error is
whether it is highly probable that the error did not contribute to the
verdict.” Kirby v. State, 304 Ga. 472, 478 (819 SE2d 468) (2018)
(citation and punctuation omitted). It is the State’s burden to show
harmlessness. Bozzie v. State, 302 Ga. 704, 708 (808 SE2d 671)
(2017). In deciding whether the State has met its burden, “we weigh
the evidence as we would expect reasonable jurors to have done so,
as opposed to assuming that they took the most pro-guilt possible
view of every bit of evidence in the case.” Boothe v. State, 293 Ga.
285, 289 (745 SE2d 594) (2013) (citations omitted).
Even though the evidence of Appellant’s guilt was sufficient to support the jury’s guilty verdicts under Jackson v. Virginia, supra,
the evidence that Appellant was not acting in self-defense when he
shot Walden was not particularly strong. There were only two
eyewitnesses to the shooting other than Appellant. Smith was
Walden’s girlfriend, could not hear what Appellant and Walden were
saying, and could not see parts of the fight, including how it began.
Weaver’s version differed from Smith’s in critical respects, including
who initiated physical aggression and who ended up on the ground
and when. Much of the State’s remaining evidence was
circumstantial — testimony that after the shooting, Appellant fled
the scene, lied to his friend about being involved in the shooting, and
did not tell anyone prior to trial that he shot Walden in self-defense
— and none of that testimony is compelling evidence of Appellant’s
guilt.
Given the relative weakness of the State’s evidence of
Appellant’s guilt, we cannot conclude that it is highly probable that
any error in the admission of evidence of Appellant’s 2005 felony
conviction for obstructing a law enforcement officer during the first phase of the bifurcated trial did not contribute to the guilty verdicts
and was therefore harmless. Accordingly, we vacate Appellant’s
convictions, and we remand this case to the trial court with direction
to exercise its discretion to determine under the correct former
OCGA § 24-9-84.1 (a) (2) standard if the prior felony conviction was
properly admitted. If the trial court decides under the correct
standard that the prior felony conviction was properly admitted,
then the court should re-enter the judgments of conviction and
sentence against Appellant, and Appellant could then take another
appeal challenging that ruling. If, on the other hand, the court
decides that the prior felony conviction evidence should have been
excluded, then a new trial will be necessary.4 See Rouzan v. State,
308 Ga. 894, 901 (843 SE2d 814) (2020).
3. The remaining enumerations of error — two other allegedly
erroneous evidentiary rulings and Appellant’s claim of ineffective
assistance of trial counsel — are unlikely to recur in the event of a
4 Given the age of this case, it is imperative that the trial court move
promptly in determining this issue on remand. retrial, so we do not address them now. Appellant may raise these
issues again in a renewed appeal if the trial court does not grant him
a new trial and re-enters the judgments of conviction and sentence.
See Rouzan, 308 Ga. at 901.
Judgment vacated and case remanded with direction. All the Justices concur.
Decided September 8, 2020.
Murder. Richmond Superior Court. Before Judge Brown. Lucy D. Roth, for appellant. Natalie S. Paine, District Attorney, Joshua B. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.