BUTLER v. STATE

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Docket Number

32164.

Attorney(S)

Larry D. Ruskaup, D. L. Lomenick, Jr., for appellant. William M. Campbell, District Attorney, Bruce Hinshelwood, Assistant District Attorney, Arthur K. Bolton, Attorney General, Isaac Byrd, Staff Assistant Attorney General, for appellee.

Judges

HILL, Justice.

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Smart Summary

Factual and Procedural Background

Defendant Charles Aaron Butler was convicted by a jury of burglary, robbery, and two counts of kidnapping with bodily injury in Catoosa Superior Court. The convictions arose from an incident in which two masked men entered a doctor's home around 2:00 a.m., assaulted the doctor and his wife, and then forced them to drive to the doctor's clinic where $250 was taken. The wife managed to call the police, and one robber was apprehended at the scene while the other fled. A police officer testified that, in his honest opinion, the defendant was the fleeing robber. The doctor identified the defendant by voice and walk. Additionally, the defendant’s vehicle was linked to the crime scene by license plate records, and the defendant was named in a confession by Hayes, the man arrested at the scene. The defendant represented himself at trial, introduced Hayes' confession, and called Hayes as a defense witness. Hayes denied the defendant’s involvement but testified that a tape recording of his confession would reveal how his admissions were obtained.

Legal Issues Presented

Whether the trial court erred in allowing the jury to be dispersed during the course of the trial.
Whether the trial court erred in denying the defendant’s motion for a psychiatric examination after the defendant rejected appointed counsel and represented himself.
Whether the denial of the defendant’s motion for a directed verdict as to kidnapping was proper given the overlap in conduct with the robbery charge.
Whether evidentiary rulings and jury instructions raised in enumerations four through eight were erroneous.
Whether the admission of hearsay testimony referencing a statement by the defendant’s sister was reversible error.
Whether the trial court erred in denying the defendant’s motion for production of a tape recording of Hayes’ pre-trial interrogation, which the defendant claimed was exculpatory evidence.

Arguments of the Parties

Appellant's Arguments

The defendant challenged the trial court’s allowance for jury dispersal during trial, urging reconsideration of prior rulings permitting such dispersal when the state is not seeking capital punishment.
The defendant contended that his rejection of appointed counsel and self-representation warranted a psychiatric examination to assess competency.
The defendant argued that the same conduct underpinned both kidnapping and robbery convictions, thus his motion for directed verdict on kidnapping should have been granted.
The defendant claimed error in evidentiary rulings and jury instructions identified in enumerations four through eight.
The defendant objected to hearsay testimony implicating him based on a statement from his sister.
The defendant asserted that the tape recording of Hayes’ interrogation was exculpatory evidence under Brady v. Maryland and should have been produced, contending it would show he was wrongly implicated.

Appellee's Arguments

The state relied on precedent supporting jury dispersal in non-capital cases and opposed overruling those decisions.
The state maintained that rejection of counsel does not imply incompetence, and the trial court properly denied the psychiatric examination motion.
The state argued that kidnapping and robbery are distinct offenses under the law, and both convictions were appropriate.
The state contended that evidentiary and instructional rulings were proper and did not warrant reversal.
The state acknowledged error in admitting hearsay but argued it was harmless given other strong identification evidence.
The state asserted that the tape was misplaced or unavailable, and the trial court’s decision not to compel production was within its discretion; the officer claimed personal ownership of the tape, though the court rejected that characterization.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kessel v. State, 236 Ga. 373 (1976)	Permitted jury dispersal during trial when capital punishment is not sought.	The court declined to overrule this precedent and affirmed the permissibility of jury dispersal in the present case.
Brinks v. State, 232 Ga. 13 (1974)	Allowed jury dispersal during trial under non-capital circumstances.	Reaffirmed as good law supporting the trial court’s decision.
Collins v. State, 239 Ga. 45 (1977)	Supported prior rulings on jury dispersal.	Used to reinforce the court’s refusal to reconsider earlier decisions.
Taylor v. State, 229 Ga. 536 (1972)	Rejection of counsel does not establish mental incompetence.	Applied to uphold denial of psychiatric examination motion.
Roach v. State, 221 Ga. 783 (1966), cert. denied 385 U.S. 935 (1966)	Similar principle regarding competence and counsel rejection.	Supported the trial court’s assessment of defendant’s competency.
Code Ann. § 26-505(a)	Defines that kidnapping and robbery are separate offenses.	Used to reject the argument that kidnapping conviction was improper due to overlap with robbery.
State v. Estevez, 232 Ga. 316 (1974)	Clarified the distinction between kidnapping and robbery offenses.	Applied to uphold convictions on both charges.
Johnson v. State, 238 Ga. 59 (1976)	Harmless error doctrine regarding admission of hearsay evidence.	Used to conclude that admission of hearsay was harmless given other evidence.
Brady v. Maryland, 373 U.S. 83 (1963)	Requirement to disclose exculpatory evidence to defendant.	Guided the court’s direction for a post-trial hearing to determine if withholding the tape was error.
Banks v. State, 235 Ga. 121 (1975)	Application of Brady principles in Georgia.	Supported the court’s approach to the exculpatory evidence claim.
Hayes v. State, 138 Ga. App. 666 (1976)	Referenced in connection with the confession naming the defendant.	Provided context for the confession evidence introduced by the defendant.

Court's Reasoning and Analysis

The court systematically reviewed each of the defendant’s enumerated issues. It upheld the trial court’s allowance for jury dispersal, relying on established precedents that permit dispersal when the state does not seek capital punishment. The court found no merit in the claim that the defendant’s self-representation required a psychiatric examination, emphasizing that refusal of counsel alone does not indicate incompetence and that the trial judge was in the best position to assess competency.

Regarding the overlap of charges, the court applied statutory and case law distinctions to conclude that kidnapping and robbery are separate offenses and that the evidence supported convictions on both counts. The court found no reversible error in evidentiary rulings or jury instructions raised in enumerations four through eight.

Although the trial court erred in allowing a hearsay question about an incriminating statement from the defendant’s sister, the court held this error to be harmless in light of other strong identification evidence, including Hayes’ confession and the testimony of the victims and police officer.

On the critical issue of the tape recording of Hayes’ pre-trial interrogation, the court recognized that the tape was created during official law enforcement duties and thus was not the personal property of the officer who possessed it. The trial court’s denial of production of the tape was error if the tape still existed. Because the tape’s existence and content were uncertain, the court directed a post-trial hearing to determine whether the tape could be reviewed and whether withholding it was harmful error. The defendant was granted leave to file a new appeal based on the outcome of that hearing.

Holding and Implications

Judgment Affirmed with Direction.

The Supreme Court of Georgia affirmed the defendant’s convictions and sentences but directed the trial court to conduct a hearing to ascertain the existence and content of the tape recording of Hayes’ interrogation. The court granted the defendant leave to file a new appeal within 30 days of the trial court’s decision on this matter if adverse to the defendant. This decision leaves the convictions intact but preserves the defendant’s right to challenge potential Brady violations regarding exculpatory evidence. No new precedent was established beyond the application of existing law and procedural safeguards.

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BUTLER v. THE STATE.

HILL, Justice.

Defendant Charles Aaron Butler was convicted by a jury of burglary, robbery and two counts of kidnapping with bodily injury. He was sentenced to serve twenty years in prison for the burglary followed by twenty years for the robbery, with two concurrent life sentences for the two kidnapping counts.

The evidence indicates that two masked men entered a home at about 2:00 a. m. The owner, a doctor, and his wife were beaten. The four then went in the doctor's car to his clinic where the kidnappers obtained $250. The wife was able to call police. A policeman arrived in time to apprehend one robber and to observe the other robber briefly as he fled. The policeman testified at trial that in his honest opinion, the defendant was the fleeing robber. The doctor identified the defendant's voice and walk. The license tag numbers of several vehicles near the victims' residence were recorded by police on the morning of the crime, and one of these automobiles was owned by the defendant. The defendant was named in a confession made by Hayes, the man arrested at the scene. The defendant represented himself and introduced Hayes' confession. The defendant also called Hayes as a defense witness. Hayes testified that the defendant was not involved. Under cross examination by use of his confession he testified that a tape recording made of his confession would show the method by which his admissions were obtained.

Hayes v. State, 138 Ga. App. 666 ( 226 S.E.2d 819) (1976).

1. The trial court allowed the jury to be dispersed during the course of the trial. The defendant urges this court to reconsider the rulings of Kessel v. State, 236 Ga. 373 ( 223 S.E.2d 811) (1976), and Brinks v. State, 232 Ga. 13 ( 205 S.E.2d 247) (1974), which allow the jury to be dispersed when the state is not seeking capital punishment. We have reviewed those decisions and decline to overrule them. See Collins v. State, 239 Ga. 45 ( 235 S.E.2d 523) (1977).

2. Counsel for defendant contends that because the defendant rejected the assistance of his appointed counsel and undertook to conduct most of his own defense, the trial court erred in overruling a motion for psychiatric examination of defendant. A defendant's rejection of appointed counsel is not evidence of mental incompetence. The trial judge had the opportunity to judge the ability of the defendant and we cannot say that the trial court erred in denying the motion. Taylor v. State, 229 Ga. 536 ( 192 S.E.2d 249) (1972); Roach v. State, 221 Ga. 783 ( 147 S.E.2d 299) (1966), cert. den., 385 U.S. 935 (1966).

3. Defendant contends that the same conduct was used as the basis for both the kidnapping and the robbery convictions, so that his motion for directed verdict as to the kidnapping was improperly denied. Although the facts as to the kidnapping and the armed robbery are closely related, neither crime is included in the other as a matter of fact. Code Ann. § 26-505 (a); State v. Estevez, 232 Ga. 316 ( 206 S.E.2d 475) (1974).

4. Defendant's Enumerations four through eight concern evidentiary questions and jury instructions. We find no error committed by the trial court with regard to the matters in these enumerations.

5. A question by the special prosecutor directed to the defendant's brother on cross examination contained a reference to an alleged statement made by their sister incriminating the defendant. Although allowing this question based upon asserted hearsay over objection was error, it was harmless. The defendant had elicited similar statements from the doctor's wife, and in view of other identification evidence, particularly the Hayes confession, it is highly probable that the prosecutor's statement did not contribute to the judgment of the jury. Johnson v. State, 238 Ga. 59 ( 230 S.E.2d 869) (1976).

6. The pre-trial interrogation of Hayes, the man arrested at the scene of the crime, was recorded on tape by a policeman. Pursuant to the defendant's motion for the production of exculpatory evidence known by the state (Brady v. Maryland, 373 U.S. 83 ( 83 S.C. 1194, 10 L.Ed.2d 215) (1963); Banks v. State, 235 Ga. 121 ( 218 S.E.2d 851) (1975)), the court ordered that all oral and written statements made by the arrested man be furnished the defendant. At a pre-trial hearing the policeman responded that the tape had been misplaced, but at the defendant's trial the policeman testified simply that he did not know where the tape was and that the tape implicated the defendant "but not enough to bring it here in court." The defendant contends that the tape will show that he was wrongly implicated in these crimes. His renewed motion for production of the tape was denied.

The officer said "I don't intend to give up the tape — the tape is my own personal property, as far as that goes, and don't have anything to do with the statement he [Hayes] wrote." The tape was made as a consequence of the officer's interrogation of a man under arrest and thus was made in the course of his duties as a law enforcement official; the information on that tape is not the personal property of the officer regardless of the ownership of the recording equipment.

The officer testified that the tape implicated the defendant but not enough, in his opinion, to warrant producing it in court. This is a decision to be made by the trial judge. If the tape still existed, allowing it to be withheld from the defendant was error. Whether there was harmful error can be determined by a post-trial hearing in the trial court to determine the existence of and to review the tape. The judgment will be affirmed with direction that the trial court conduct a hearing to consider these issues. Appellant is granted leave to file a new appeal within 30 days of the decision by the trial judge on this issue if the decision is adverse to appellant.

Judgment affirmed with direction. All the Justices concur.