State v. Fredrick Butler

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED FEBRUARY SESS ION, 1998 February 20, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

FREDERICK A. BUTLER, ) C.C.A. NO. 02C01-9705-CR-00191 )

Appe llant, )

) SHELBY COUNTY

V. )

)

) HON. ARTHUR T. BENNETT, JUDGE STATE OF TENNESSEE, )

)

Appellee. ) (POST-C ONVIC TION)

FOR THE APPELLANT: FOR THE APPELLEE:

GARLAND ERGUDEN JOHN KNOX WALKUP 242 Poplar Avenue Attorney General & Reporter Memphis, TN 38103 JANIS L. TURNER

Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North

Nashville, TN 37243

JOH N W. P IERO TTI

District Attorn ey Ge neral

PAUL GOODMAN

Assistant District Attorney General 201 Poplar Avenue - Third Floor Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The Appellant, Fre derick A. Butler, appeals as of right from the trial court’s dismiss al of his pe tition for post-c onviction relief following an eviden tiary hearing. The issue presented for revie w, as s tated in Appe llant’s brief, is as follows: “The trial judge erred in finding that Petitioner’s guilty plea was knowing and voluntary and not the product of ineffective assistance of counsel.” After a review of the entire record on appeal, the argum ents o f coun sel, an d the a pplica ble law, we affirm the ju dgme nt of the trial co urt.

In July, 1994 the S helby Coun ty grand jury returned an indictment charging the Appellant and his co-defendant with the first degree murder of Appe llant’s infant son. The Appellant was tried prior to his co-defendant. The Appellant’s case was origina lly set for trial May 1, 1995, but was continued to May 30, 1995. During the State’s case-in-chief, the matter was resolved by a negotiated plea agreement wherein Appellant pled guilty to second degree murder and received a Range 2 sentence of forty (40) years. The sentence was ordered to be served conc urren tly with another conviction wherein Appellant had previously been sentenced.

The State was seeking the death penalty in the event of Appe llant’s conviction of first degree murder following a jury trial. Accordingly, two attorneys were appointed to represent Appellant. Although the reason is not clear in the record, Appe llant wa s alleg ing at th e pos t-conv iction h earing that on ly the lead trial couns el was ine ffective.

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It is clear from the record that the transcript of the trial proceedings up to the guilty plea, and the transcript of the guilty plea hearing were available to the parties and the trial court prior to and during the pos t-conviction hearing . However, these transcripts are not included in the record on appeal, even though references to excerpts from the transcripts are referre d to during examin ation of witn esses. In his brief, Appellant make s referen ces to a tra nscript wh ich is app arently the guilty plea hearing and the evidence adduced at trial prior to the guilty plea, but as stated above, these transcripts are not a part of the appellate record.

The Appellant, his sister, and his lead counsel in the original proceedings testified at the post-conviction hearing. Regarding ineffectiveness of counse l, Appellant m ade severa l complaints ab out his lead cou nsel. Specifically, Appellant testified that his trial counsel did not develop proof to show that his co- defendant actua lly killed the child with a pair of sandals, did not develop proof through an independe ntly appointed pathologist to contradict the testimony of the State’s expert medical examiner who performed the autopsy, and did not develop proof regarding his co-defen dant’s prio r history of ab use to oth er children . In addition, Appellant testified that his trial cou nsel st ated th at he w ould n ot call material and nece ssary witnes ses to testify, sp ecifica lly Appella nt’s sister an d aunt. Moreover, Appellant complained that his trial counsel did not discuss the poss ibility of a conviction on lesser includ ed offe nses and d id not want Appellant to testify even though it was Appellant’s de sire to testify in h is defe nse. A ppella nt also wante d his co-defendant to be compelled to testify and he alleged that trial couns el refused to take ne cessar y steps to h ave the c o-defen dant testify a t trial.

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Trial coun sel testified that he filed approximately twenty (20) pre-trial motions on behalf of Appellant. Also, counsel prepared for trial on both occasions that the matter was set. He spent in excess of 180 hours in his representation of Appe llant. Furthermore, trial counsel stated that Appellant, from the very beginning, indicated that he did not want to go to trial but wanted to obtain the best negotiated plea a greem ent po ssible . Appe llant initia lly turned down an offer to plea d guilty to first degree murder and receive a term of life imprisonment. Later, on two (2) occasions prior to trial, he rejected the plea offer he ultimately accepted during the course of the trial. W hile the m edical exa miner w as testifying , the court took a recess and Ap pellant as ked his tria l counse l to inquire as to whether or not the offer of pleading to second degree murder and receiving a forty (40) year, Range 2 sentence was still available. Trial counsel m et with the Assistan t District Attorneys who were prosecuting the case as well as the District Attorney General for Shelby Coun ty during the recess to reach th e nego tiated plea agreem ent.

Trial counsel testified that he discussed in length the witnesses who Appellant wanted to use at trial, and that he was prepared to call these witnesse s to testify at trial. Co unse l also in vestigated the juvenile court records of the co- defendant and the medic al record s of the victim . He could not determine any causal relation ship between any alleged striking of the victim with sandals by the co- defendant and the ultimate cause of death. Trial counse l interviewed witnesses, including the medical examiner, prior to trial. Furthermore, counsel reviewed the entire file of the prosecutor as well as the physical evidence located in the evidence storage room. Appellant informed lead counsel and co-counsel that he had no comp laints about their services as attorneys and that what they did or did not do had not caused him to change his mind regarding his plea of not guilty. Counsel was

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also aware of the fact that the State had in its possession a letter written by Appellant to his co -defen dant a dmittin g his guilt and e xoneratin g the co- defend ant. Counsel was cognizant of the fact tha t the State did not plan to call the co-defendant as a witness in its case-in-chief, but would call her as a rebuttal witness in the event Appellant’s proof indicated that it was his co-defendant, and not himself, who had comm itted the ho micide.

The trial court made detailed written findings of fact and conclusions of law which accredited the testimony of trial counsel and rejected the testimony of Appe llant. The trial court specifically found that counsel rendered assistance which was within the range of competence expected of an attorney in a criminal case.

In determining whether counsel provided effective assistance at trial, the court must decide whether counsel’s performance was within the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a petitioner bears the burden of showing that his counsel made errors so serious that he was not functioning as counsel as g uarante ed und er the Sixth Amendment and that the deficient representation prejudiced the petitioner resulting in a failure to produce a reliable re sult. Strickland v. Washington, 466 U.S. 668, 687, reh’g denied, 467 U.S . 1267 (1 984); Coope r v. State, 849 S.W.2d 744, 747 (Tenn. 1993); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy the second prong the petitione r mus t show a reas onab le prob ability tha t, but for c ouns el’s unrea sona ble error, the fact finder would have had reasonable doubt regarding petition er’s guilt. Strickland, 466 U .S. at 695 . This rea sonab le proba bility must be

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“sufficient to undermine confidence in the o utcome.” Harris v. S tate, 875 S.W.2d 662, 665 (T enn. 1994 ).

When reviewing trial counsel’s actions, this court should not use the bene fit of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard v. State, 629 S.W .2d 4, 9 (Ten n. 1982). Co unsel’s alleged e rrors should be judged at the time they we re made in light of all facts a nd circum stance s. Strickland, 466 U .S. at 690 ; see Cooper 849 S.W.2d at 746.

This two part standard of measuring ineffective assistance of counsel also applies to claims arising out of the p lea proce ss. Hill v. Lockhart, 474 U.S. 52 (1985). The prejudice requirement is modified so that the petitioner “must show that there is a reasonable probab ility that, but for counse l’s errors he would n ot have pleaded gu ilty and would have insisted on going to trial.” Id. at 59.

On the ap peal fro m a p ost-co nviction relief hearin g, the tria l court’s findings of fact are conclusive unless the evidence preponderates against those findings. Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90); State v. Cook, 749 S.W.2d 42, 45 (Tenn. Crim. App. 1987). The burden is on the appellant to show that the evidence preponderates against the findings of the trial cour t. Cook, 749 S.W.2d at 45; Good ner v. State , 484 S.W.2d 364, 365 (Tenn. Crim. App. 1972). Questions concerning the cre dibility of w itness es an d the w eight a nd valu e to be given th eir testimony are resolved by the trial co urt, not the a ppellate c ourt. Parha m v. State , 885 S.W .2d 375 , 379 (T enn. C rim. App . 1994); Black v. S tate, 794 S.W.2d 752, 755 (Tenn. C rim. App. 199 0).

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The trial court heard the testimony from the Appellant and his witness, as well as his trial counsel. The trial court made specific findings of fact which were contrary to Appe llant’s asse rtions. The evidence in the record does not prepon derate against these findings by the trial court. Acco rdingly , this issu e is without m erit.

Appellant also complains that he did not enter a knowing and voluntary guilty plea. He ar gues in part that his guilty plea was not knowing and voluntary because of the in effective assista nce o f his lea d cou nsel. In effect, Appellant argues that his gu ilty plea w as co erced by both his cou nsel d irectly insisting upon a plea of guilty and by his failing to provide a prope r defens e. Furthermore, Appellant argues that he was scared by certain comments made by the trial judge at the guilty plea submission hearing. He submits that he was therefore prevented from stating on the record at that time: (1 ) that he de sired to proceed with the trial and (2) that he had serious problems with the way his counsel had been representing him.

It is sufficient to s tate here that the reco rd available clearly reflects that the trial court pro perly foun d that Ap pellant en tered a k nowing and volu ntary guilty plea. Furthermore, since the guilty plea hearing was not made a part of the record on appea l, we are re quired to assum e that the tria l court made p roper findings regarding this issue. It is the duty of the app ellant to prepare a record which conveys a fair, accurate, and co mplete acc ount of what tra nspired in the trial cou rt with respect to the issues which form the basis of an appeal. Tenn. R. App. P. 24 (b): State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App . 1991). When an appellant fails to include necessary portions of the record on appeal regarding an issue, an appellate court is preclude d from c onside ring the m erits of the issu e. See Tenn. R.

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App. P. 24(b); State v. Ballard, 855 S.W .2d 55 7, 561 (Ten n. 199 3). Acc ording ly, this issue is w ithout me rit.

Finding that the trial cou rt prop erly dismissed the Appellant’s petition for post-co nviction relief, w e affirm the judgm ent of the tria l court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

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JOSEPH B. JONES, Presiding Judge

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JOHN H. PEAY, Judge