State v. Butler

960 So. 2d 1208, 2007 WL 1760672
Louisiana Court of Appeal·Decided June 20, 2007·No. 41,985-KA·Published·Cited by 12 cases

Opinion

960 So.2d 1208 (2007)

STATE of Louisiana, Appellee,
v.
Thomas Breon BUTLER, Appellant.

No. 41,985-KA.

Court of Appeal of Louisiana, Second Circuit.

June 20, 2007.

*1209 Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.

Thomas Breon Butler, pro se.

Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Shenequa L. Grey, Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and MOORE, JJ.

STEWART, J.

The defendant, Thomas Breon Butler, was convicted of attempted obstruction of justice, adjudicated a second felony offender, and sentenced to ten years at hard labor without benefits of probation or suspension of sentence. We find no merit to *1210 the arguments asserted in this appeal, and we affirm the defendant's conviction and sentence. Appellate defense counsel's motion to withdraw is granted.

FACTS

The defendant was charged by bill of information with obstruction of justice for allegedly tampering with evidence in a criminal proceeding in which a sentence of death or life imprisonment may be imposed. He entered a not guilty plea, and a jury trial was held.

At trial, Detectives Russell Ross and Chuck Andrews of the Shreveport Police Department testified that the defendant's brother, Timothy Butler, was a suspect in a robbery and homicide that was under investigation. Timothy was arrested pursuant to a warrant on January 4, 2002. At the time of the arrest, Timothy was in a vehicle with the defendant, his brother. Though not revealed at trial, the defendant was also arrested for possession of a firearm by a convicted felon and was brought in for questioning.

After being advised of and waiving his Miranda rights, the defendant was interviewed regarding any information he might have about his brother's involvement in the robbery and homicide. The defendant agreed to submit to DNA testing. He signed an epithelial cells submission form reflecting his voluntary submission of epithelial cells for extraction of DNA. Detective Andrews first obtained the epithelial cells from Timothy and then from Thomas. The swabs used to collect the cells were placed in respectively-labeled sample boxes, and the boxes were placed on a bookshelf in Detective Ross's office where the defendant had been interviewed. Detective Andrews left the office after taking the sample. Shortly after, Detective Ross stepped outside his office and walked a few feet down the hall to look for Andrews, leaving the defendant alone for a period between twenty seconds to a minute.

When Detective Ross returned to his office, he saw the defendant bent over his desk with his head obscured from sight. When the defendant stepped away from the desk, Ross saw that he had a swab cupped in his right hand. The box labeled as containing Timothy's epithelial cell sample had been opened and the swab removed. According to Ross, the defendant explained that he thought Timothy committed the murder, and he was trying to prevent the police from obtaining evidence by somehow contaminating or destroying the sample. Ross explained to the defendant that his story did not make sense, because they could easily obtain another sample from Timothy.

Both the defendant and his brother again voluntarily submitted epithelial cell samples. The offense report was written by Detective Ross four days after the commission of the offense. By then, the original samples had been thrown away.

The state also presented the testimony of Corporal Clarence Van Wray regarding the execution of the warrant that led to the arrests of the defendant and his brother. The defense did not present any testimony.

The jury found the defendant guilty of attempted obstruction of justice, a violation of La. R.S. 14:27 and La. R.S. 14:130.1. The state filed a habitual offender bill alleging the defendant to be a second felony offender. The defendant pled not guilty. After a hearing, the trial court adjudicated him a second felony offender. On September 7, 2004, the trial court denied the defendant's motions for a new trial and for post verdict judgment of acquittal and then imposed the sentence of ten years at hard labor without benefits of probation or suspension of sentence and with credit for time served. In imposing *1211 the sentence, the trial court noted that the defendant did not have an extensive criminal history and that his prior felony had not been a crime of violence. Thus, she imposed the minimum sentence allowable under the law.

On July 19, 2006, the defendant filed a pro se motion for an out-of-time appeal, which was granted by the trial court. After noting the defendant's self-representation, this court remanded the matter to the trial court for either valid waiver of counsel or determination of indigency and appointment of counsel. After the defendant indicated he desired counsel and was indigent, the Louisiana Appellate Project enrolled on his behalf. In the meantime, the defendant had filed a pro se brief.

Appointed counsel, Carey Ellis, filed an Anders brief and a motion to withdraw, alleging he found no non-frivolous issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir. 1990). He noted that the bills of information charging the defendant with obstruction of justice and the habitual offender bill were properly filed and signed by an assistant district attorney. Also, the defendant was present in court and represented by counsel at all important stages of the proceedings, including arraignment, the jury trial, the habitual offender hearing, and sentencing. Ellis requested that the defendant be allowed to file a supplement to his pro se brief, if necessary.

On February 22, 2007, this court issued an order holding defense counsel's motion to withdraw in abeyance and granting the defendant the opportunity to file a supplemental brief. The defendant filed both a pro se supplemental brief and "clarifications" of his brief raising the issues addressed below.

DISCUSSION

Sufficiency of the Evidence

The defendant argues that the evidence was insufficient to support his conviction. He believes that the destruction of the swab and box from the first epithelial sample taken from his brother, Timothy, which he refers to as "State's Exhibit Unknown," deprived him of evidence in his favor and requires a reversal of the guilty verdict.

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, wr

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