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.
-2- 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.
-3- 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
-4- 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.
Free access — add to your briefcase to read the full text and ask questions with AI
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.
-2- 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.
-3- 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
-4- 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
-5- “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).
-6- 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.
-7- 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:
___________________________________ JOSEPH B. JONES, Presiding Judge
___________________________________ JOHN H. PEAY, Judge
-8-