George Lee Butler v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00883-COA
GEORGE LEE BUTLER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
04/15/2008
HON. CHARLES E. WEBSTER
TUNICA COUNTY CIRCUIT COURT
LESLIE S. LEE
ERIN ELIZABETH PRIDGEN
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTED OF BURGLARY OF A
DWELLING AND SENTENCED AS A
HABITUAL OFFENDER TO TWENTYFIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY
FOR PROBATION OR PAROLE
AFFIRMED - 07/28/2009
BEFORE LEE, P.J., ISHEE AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
On February 5, 2008, a Tunica County grand jury indicted George Lee Butler as a
habitual offender for burglary of a dwelling. After a one-day jury trial held on April 15,
2008, the jury returned a guilty verdict, and the trial court sentenced Butler as a habitual
offender to serve twenty-five years, without eligibility for probation or parole, in the custody
of the Mississippi Department of Corrections (MDOC). Butler now timely appeals alleging
that the trial court committed plain error in failing to conduct a Peterson 1 balancing test or
a Mississippi Rule of Evidence 403 balancing test concerning Butler’s prior convictions and
bad acts. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On September 29, 2007, Otis Whalen returned to his home in Tunica, Mississippi to
find that someone had burglarized his home. After going through his home, Whalen
allegedly discovered that his gun and $2,000 worth of jewelry were missing. Later that same
evening, Whalen stated that Butler had called him and confessed to Whalen that he had
burglarized his home. However, at trial, Butler denied making such a confession to Whalen.
¶3.
On October 13, 2007, law enforcement arrested Butler. After being read his Miranda
warnings, Butler voluntarily confessed to burglarizing Whalen’s home. In his written
confession, Butler stated the following: “I broke in [sic] Otis Whalen [sic] house and stole
his jewelry and guns. I sold the gun and jewelry for $100, and [another man] buy [sic] the
gun and jewelry.” Detective Dwight Woods read Butler’s confession into the record at trial.
¶4.
Butler took the stand in his own defense. During direct examination, defense counsel
asked Butler how many felony convictions he had. Butler replied that he did not know, and
stated that “I got [sic] quite a few of them.” During cross-examination, the prosecutor also
asked Butler how many felonies he had to which Butler replied that he had more than five.
The prosecutor then listed a string of felony convictions on Butler’s record, which included
1
Peterson v. State, 518 So. 2d 632, 636 (Miss. 1987).
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the following: uttering a forgery, two counts of business burglary, auto theft, and three counts
of possession of a controlled substance. Butler’s defense counsel never objected to the
introduction of this evidence. The prosecutor also asked Butler whether he had broken into
Whalen’s house before the crime charged at issue, which Butler denied. Again, defense
counsel did not object to this line of questioning.
¶5.
The jury returned a guilty verdict as to the charge of burglary of a dwelling pursuant
to Mississippi Code Annotated section 97-17-23(1) (Supp. 2008).
The trial court
subsequently sentenced Butler as a habitual offender pursuant to Mississippi Code Annotated
section 99-19-81 (Rev. 2007), to twenty-five years, without eligibility for probation or
parole, in the custody of the MDOC.
¶6.
Butler now appeals alleging that the trial court committed plain error by failing to
conduct a Peterson balancing test or a Rule 403 balancing test concerning Butler’s prior
convictions and “bad acts.”
STANDARD OF REVIEW
¶7.
“The standard of review governing the admission or exclusion of evidence is abuse
of discretion.” Williams v. State, 991 So. 2d 593, 597 (¶8) (Miss. 2008) (citation omitted).
“Unless the [trial] judge abuses this discretion so as to be prejudicial to the accused, the
Court will not reverse [the] ruling.” Id. (citation omitted).
DISCUSSION
A. Butler’s Prior Convictions
¶8.
Butler argues on appeal that the trial court committed plain error by failing to conduct
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a Peterson 2 balancing test or a Rule 403 3 balancing test concerning the admission of Butler’s
prior convictions. Butler admits that during the trial, his defense counsel “failed to object
to the introduction of Butler’s prior convictions without the Peterson hearing.” However,
Butler contends that this Court should consider this assignment of error under the plain-error
doctrine.
¶9.
In turn, the State argues that even if this issue does not face a procedural bar, it lacks
merit because defense counsel took the initiative in bringing Butler’s prior convictions to the
jury’s attention during direct examination. Hence, the State contends that Butler opened the
door to the State’s ability to question him further about his prior convictions.
¶10.
“The general rule is that evidence of a crime, other than the one for which the accused
is being tried, is not admissible.” Palmer v. State, 939 So. 2d 792, 795 (¶8) (Miss. 2006).
However, Mississippi Rule of Evidence 609(a)(1)(B) allows the introduction of prior
convictions for the limited purpose of attacking the credibility of the witness. “The rule
requires that before evidence of a prior conviction is introduced for the purpose of attacking
2
In Peterson, “[t]he Court listed several factors that should be considered by the trial
court when weighing the probative value against the prejudicial effect: (1) [t]he impeachment
value of the prior crime[,] (2) [t]he point in time of the conviction and the witness'[s]
subsequent history[,] (3) [t]he similarity between the past crime and the charged crime[,] (4)
[t]he importance of the defendant's testimony[, and] (5) [t]he centrality of the credibility
issue.” DeLoach v. State, 722 So. 2d 512, 520 (¶32) (Miss. 1998) (quoting Peterson, 518 So.
2d at 636). Furthermore, in Deloach, the supreme court held that a trial court’s failure to
engage in a Peterson balancing test is harmless error in a case where the evidence of guilt
is overwhelming. Id. at 520 (¶34).
3
Rule 403 provides that “relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
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the credibility of a witness, ‘the court is to determine that the probative value of admitting
this evidence outweighs its prejudicial effect to the party.’” Moss v. State, 977 So. 2d 1201,
1209 (¶14) (Miss. Ct. App. 2007) (citing M.R.E. 609(a)(1)(B)).
¶11.
In Moss, this Court found that although under Rule 609(a)(1)(B) the trial court must
determine that the probative value of a prior conviction outweighs its prejudicial effect, no
error exists in the trial court failing to do so when the defendant opens the door to his or her
own prior convictions. Moss, 977 So. 2d at 1210-11 (¶¶16-18). Such action denies the trial
court the opportunity to perform the appropriate balancing analysis. Id.
¶12.
The Moss Court explained its holding in the following manner:
It is well established that if a defendant opens the door to the admission of
otherwise inadmissible evidence, the State then may proceed to question
further into the matter. . . . But, “[t]he impeachment evidence is admissible
only for the purpose of impeaching credibility and may not be used for the
purpose of establishing its truth.” Bush v. State, 895 So. 2d 836, 848 ([¶]31)
(Miss. 2005) ([citation omitted]). “The State is further limited in that its
‘impeachment privilege may not exceed the invitation extended.’” [Id.]
(quoting Stewart, 596 So. 2d at 853). However, “if a defendant opens the door
to [a] line of testimony, ordinarily he may not complain about the prosecutor's
decision to accept the benevolent invitation to cross the threshold.” Kolberg
v. State, 829 So. 2d 29, 56 ([¶]56) (Miss. 2002) ([citation omitted]).
Id. at 1210 (¶16).
¶13.
The trial transcript reveals that Butler opened the door to the admittance of his prior
felony convictions by his testimony during direct examination in which he stated that he did
not know how many felony convictions he possessed, but that he “got [sic] quite a few of
them.” On cross-examination, the State also questioned Butler about how many felony
convictions he had.
In response, Butler testified that he had more than five felony
convictions. It was at this point that the State delved further into Butler’s response and asked
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him specifically about the nature of his prior convictions.
¶14.
Consequently, when Butler introduced his record of prior convictions on his own
initiative during direct examination, he effectively denied the trial court the opportunity to
perform the appropriate balancing test so that it could determine whether Butler’s prior
convictions constituted admissible evidence. Additionally, we note that when the State
cross-examined Butler specifically about his prior convictions, defense counsel failed to
object. See, e.g., Harris v. State, 861 So. 2d 1003, 1020 (¶46) (Miss. 2003) (stating that
when a defendant introduces evidence of a prior conviction, he waives any objection
concerning its admission into evidence). For the above reasons, we find that the trial judge
did not abuse his discretion by allowing the State to question Butler about his prior
convictions.
¶15.
As to Butler’s request that we apply the plain-error doctrine to his case, “this Court
applies the plain[-]error rule only when it affects a defendant's substantive/fundamental
rights.” Williams v. State, 794 So. 2d 181, 187 (¶23) (Miss. 2001) (overruled on other
grounds). Here, we cannot find that the State’s line of questioning as to what prior
convictions Butler had substantially affected Butler’s right to a fair trial when Butler openly
admitted on direct examination that he had a record of multiple felony convictions. This
issue lacks merit.
B. Butler’s Prior Bad Acts
¶16.
Butler also argues on appeal that the trial court erred in failing to conduct a Peterson
balancing test when the State introduced testimony, during its cross-examination of Butler,
that Butler had previously attempted to burglarize Whalen’s house before the incident at
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issue. In response, the State argues that Butler waived this issue on appeal when he failed
to contemporaneously object at trial to the introduction of such evidence.
¶17.
Mississippi Rule of Evidence 404(b) states the following as to the admissibility of
prior “bad acts”:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
¶18.
During cross-examination, the prosecution attempted to elicit testimony from Butler
that he previously had broken into Whalen’s house before the incident at issue. Defense
counsel failed to object to the introduction of such testimony. In fact, in cross-examining
Whalen, defense counsel attempted to develop its theory of defense by eliciting testimony
from Whalen that he never saw Butler break on any occasion.
¶19.
Again, we find that a defendant’s failure to contemporaneously object to the
admission of evidence at trial, as required by Mississippi Rule of Evidence 103, effectively
waives the issue on appeal. See Busick v. State, 906 So. 2d 846, 861-62 (¶44) (Miss. Ct.
App. 2005) (holding that the defendant waived the issue on appeal when he failed to
contemporaneously object to the admission of such evidence at trial).
¶20.
In light of governing case law on this issue, we cannot find that the State’s attempted
introduction of the above evidence substantially affected Butler’s right to a fair trial when
Butler failed to object to the introduction of such testimony. See Williams, 794 So. 2d at 187
(¶23).
¶21.
This issue lacks merit.
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¶22. THE JUDGMENT OF THE TUNICA COUNTY CIRCUIT COURT OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A
HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR
PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO TUNICA COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.
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