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Byrd v. State

Court of Criminal Appeals of Tennessee, Nashville

August 24, 2017

MAURICE O. BYRD, JR.
v.
STATE OF TENNESSEE

          Assigned on Briefs March 14, 2017

         Appeal from the Circuit Court for Montgomery County No. 40600534 William R. Goodman, III, Judge

         A Montgomery County jury convicted the Petitioner, Maurice O. Byrd, Jr., of aggravated robbery, first degree felony murder, and premeditated first degree murder, and the Petitioner received an effective sentence of life. On appeal, this court affirmed the judgments. See State v. Maurice O. Byrd, No. M2010-02405-CCA-R3-CD, 2012 WL 5989817, at *1 (Tenn. Crim. App., at Nashville, Nov. 29, 2012), perm. app. denied (Tenn. Dec. 11, 2013). The Petitioner filed a post-conviction petition, and the post-conviction court denied relief following a hearing. On appeal, the Petitioner maintains that he received the ineffective assistance of appellate counsel. After review, we affirm the post-conviction court's judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Gregory D. Smith, Clarksville, Tennessee, for the appellant, Maurice O. Byrd, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; John W. Carney, Jr., District Attorney General; and Helen O. Young, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Camille R. McMullen, JJ., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts

         A Montgomery County jury convicted the Petitioner of first degree murder and aggravated robbery. The facts at trial showed that the Petitioner robbed the victim of cocaine and cash with the use of a .380 caliber Hi-Point handgun. During the course of the robbery, the Petitioner shot the victim in the head, resulting in the victim's death. See State v. Maurice O. Byrd, No. M2010-02405-CCA-R3-CD, 2012 WL 5989817, at *1 (Tenn. Crim. App. Nov. 29, 2012), perm. app. denied (Tenn. Dec. 11, 2013). On appeal, this court affirmed the trial court's judgments. Id.

         The Petitioner was represented by appointed counsel ("Counsel") at trial. On appeal, the Petitioner retained appellate counsel ("Appellate Counsel"). For reasons discussed more fully below, no Tennessee Rule of Appellate Procedure 11 petition was filed on the Petitioner's behalf. In July 2013, the Petitioner timely filed a post-conviction petition, and the Petitioner's post-conviction counsel filed a delayed Tennessee Rule of Appellate Procedure 11 petition. In his petition, the Petitioner claimed that Appellate Counsel had not timely notified him of the Court of Criminal Appeals' decision affirming the judgments, and thus no Rule 11 application for permission to appeal had been filed. The lower court granted the Petitioner's request for a delayed appeal and reserved all other post-conviction issues. The Tennessee Supreme Court denied the delayed Rule 11 application on December 11, 2013.

         On January 14, 2014, the Petitioner filed an amended post-conviction petition alleging ineffective assistance of trial counsel, a conflict of interest with respect to Appellate Counsel, and ineffective assistance of Appellate Counsel. On July 17, 2014, the judge who presided over the Petitioner's trial held a hearing on the Petitioner's issue of ineffective appellate counsel. The Petitioner asserted that Appellate Counsel raised only one issue on appeal and that it was based solely on a case that had been overruled by our supreme court. The Petitioner argued that Appellate Counsel's failure to discover that State v. Crawford, 470 S.W.2d 610 (Tenn. 1971), had been overruled by State v. Dorantes , 331 S.W.3d 370 (Tenn. 2011), created a structural defect and prejudice is presumed in cases with a structural defect pursuant to Momon v. State, 18 S.W.3d 152 (Tenn. 1999). After hearing the proof, the post-conviction court denied relief as to the Petitioner's claim of ineffective assistance of appellate counsel.

         On March 30, 2015, and February 20, 2016, a the post-conviction[1] held hearings on the Petitioner's claim of ineffective assistance of trial counsel. After hearing the proof, the post-conviction court denied relief, finding that the Petitioner had not established his claims of ineffective assistance of trial and appellate counsel. The post-conviction court also denied the Petitioner's claim of "presumptive prejudice" due to an alleged "structural defect" in the trial process.

         On appeal, the Petitioner asserts that the post-conviction court erred "by failing to grant a full-blown delayed appeal on ineffective assistance of counsel." He argues that there is a structural error in violation of Momon v. State.

         A. Trial Facts

         On direct appeal, this court summarized the evidence presented at trial as follows:

On July 1, 2005, Frank Dowlen, Jr. went to the victim, Eric Payton's, apartment in Clarksville, Tennessee. At trial, Mr. Dowlen testified that he and the victim were "pretty good friends." According to Mr. Dowlen, he was going to the victim's apartment that day to pay the victim twenty dollars that he owed the victim and to buy some marijuana from the victim. Mr. Dowlen testified that his older brother, Alpha Omega Dowlen, drove him to the victim's apartment. Mr. Dowlen estimated that he got to the victim's apartment sometime between 10:30 and 11:00 a.m. that morning. Mr. Dowlen testified that he would usually enter the apartment from the back door, but on that morning he went to the front door to "just run in, run out real quick." Mr. Dowlen was "surprised" to find the front door "cracked open." Mr. Dowlen testified that he "stuck [his] head in" and called out the victim's name. Mr. Dowlen saw the victim in the living room "laid up under a blanket."
Mr. Dowlen testified that the blanket covered the victim's whole body, including the victim's head. Mr. Dowlen approached the victim, pulled up the blanket, and saw that the victim's "brain was blown out and his eyeball was sitting next to his face." Mr. Dowlen recalled that there was "a puddle of blood" underneath the victim as well as blood on the victim's face. Mr. Dowlen testified that the blood on the victim's face and in the "puddle" was already dry and not "wet." After finding the victim's body, Mr. Dowlen "just ran" out of the apartment and back to his brother's vehicle. Mr. Dowlen "went over to [a] friend's house and called the police . . . and told them there was a dead body" at the victim's apartment. Mr. Dowlen testified that he did not see a gun or anyone else at the apartment that morning. Mr. Dowlen denied having a gun with him that day and denied that he shot the victim.
Sergeant Marty Watson of the Clarksville Police Department (CPD) was one of the first officers to arrive at the victim's apartment on July 1, 2005. Sgt. Watson testified at trial that he was dispatched to the victim's apartment around 11:56 a.m. and that he arrived at the apartment complex at 12:02 p.m. Sgt. Watson testified that when he arrived at the apartment complex, he was unsure which apartment to go to. Sgt. Watson "talked to some people there" and then "the landlord showed up and he advised . . . [that] the guy left his back door open." Sgt. Watson and some other officers went to the back of the victim's apartment and entered through a patio door that "was open about a couple of inches." Sgt. Watson testified that the victim "was laying [sic] . . . ten or twelve feet inside from the back door . . . face down." The victim was "partially covered up with a blanket, " there was "a towel laying [sic] under his face area, " and a "pillow case" in front of him.
Sgt. Watson testified that upon seeing the victim's injuries, he knew that the victim was deceased. According to Sgt. Watson, the victim's "right eye was messed up and there was a wound to the back of his head also." Sgt. Watson observed that the blood on the floor and on the victim's face had "started to dry." Sgt. Watson found "a shell casing to the right" of the victim and a slug "underneath" the victim's arm. Sgt. Watson testified that there was no one in the apartment when the police arrived and that no weapons were recovered after a search of the apartment. Sergeant Timothy W. Saunders of the CPD testified that he collected the following evidence from the victim's apartment: one .380 caliber bullet, one shell casing, and one slug. Sgt. Saunders testified that the bullet was found "in a kitchen drawer" with no weapon or other ammunition with it. According to Sgt. Saunders, the shell casing was found "on the floor behind the victim, next to the table, " and the slug was found "under the victim's right arm." Sgt. Saunders also testified that there were no firearms found in the victim's apartment.
Detective Brad Crowe of the CPD testified that he assisted with evidence collection at the victim's apartment on July 1, 2005. Det. Crowe recovered nine Lortab pills packaged in "small baggies that were tied up" from the door of the "freezer portion of the [victim's] refrigerator." Det. Crowe also recovered a "white plastic grocery sack" containing "some marijuana" from the freezer. Det. Crowe testified that he recovered twenty-four dollars from one of the kitchen cabinets. The money "appeared to have come out of a broken . . . canister that you would have flour or something in." The canister "looked like it had been broken and the money was laying right there with it." Det. Crowe also testified that no cocaine or weapons were recovered from the victim's apartment.
The police investigation into the victim's murder revealed that the night before, on June 30, 2005, the victim had a "going away" party at his apartment for his friend Arthur Lee Anderson, Jr. The party continued into the early morning hours of July 1, 2005, and several people were in and out of the victim's apartment that night. In addition to the victim and Mr. Anderson, the following people were at the victim's apartment that night: the victim's "best friend, " Thomas Lloyd Cantrell; Christian Hope Morris Hutchins, who had gone to school with the victim; two of the victim's cousins, Mareo Santez Kizer and Kedrick Phillips; one of the victim's neighbors, Anthony Townsend; and the [Petitioner]. Mr. Kizer testified that everyone at the victim's apartment that night was "[j]ust drinking and smoking a little weed, just trying to have a little party." At trial, all of the witnesses who had been to the party testified that they were intoxicated from various drugs that night. Ms. Hutchins testified that every time she visited the victim's apartment "there was something going on . . . [j]ust drugs and drinking, [and] people coming in and out."
At the time of his death, the victim was unemployed, supported himself by "selling drugs, " and paid all of his bills with cash. The victim's sister, Jennifer Payton Adams, testified that the victim "lived completely on cash." Mr. Cantrell testified that during the morning of June 30, 2005, he went with the victim to purchase the following drugs: a "quarter pound" of marijuana packaged in "one of them little hand grocery bags, " a "baggie of Lortab" pills, a "couple" of ecstasy pills, and "a ball, a ball and a half of cocaine." Mr. Cantrell explained that he was referring to an "eightball" of cocaine and that an eightball contained 3.5 grams of cocaine. Mr. Cantrell estimated that the victim bought between seven and eight grams of cocaine that day. Mr. Cantrell testified that after the victim purchased the drugs he had approximately $500 in cash left over. According to Mr. Cantrell, the victim took the drugs and cash back to his apartment.
Mr. Phillips testified that the victim "normally kept" his money in "a cookie jar in [a] cabinet in the kitchen." According to Mr. Phillips, he opened the cookie jar on the night of the party to put sixty dollars in it. Mr. Phillips testified that the jar was full of money, mostly twenty dollar bills. Mr. Phillips estimated that there was $1, 000 in the cookie jar that night. Mr. Phillips also testified that the victim had told him that he was having a party because "he made" $1, 000 that day. However, Mr. Phillips admitted that he did not take the money out of the cookie jar to count it and could only estimate how much was inside. Mr. Phillips also testified that, during the party, he saw "around a quarter pound" of marijuana in the victim's freezer. Ms. Hutchins testified that she saw marijuana, ecstasy, and cocaine at the victim's apartment that night. However, Mr. Kizer denied that anyone at the party used cocaine that night.
Mr. Cantrell testified that he went to the victim's apartment around 3:00 a.m. on July 1, 2005, and there were several people at the victim's apartment. Mr. Cantrell stated that he went to the victim's apartment that morning to get some marijuana, but when he got there, the victim was passed out "lying in front of the TV, diagonal with his head like facing towards the coffee table, sleeping." Because the victim was asleep, Mr. Cantrell only stayed at the apartment for approximately ten minutes. Mr. Kizer testified that the victim was sick and throwing up "from alcohol, " so they put a blanket on him and had him lie down in front of a fan. Ms. Hutchins, Mr. Kizer, and Mr. Phillips all testified that they left the victim's apartment together "early in the morning." The victim was still asleep on the living room floor when they left. They offered to give the [Petitioner] "a ride to where he wanted to go, " but the [Petitioner] declined and said that "he wanted to stay to make sure that [the victim] was all right." The [Petitioner] and the victim were the only people left at the apartment when Ms. Hutchins, Mr. Kizer, and Mr. Phillips left that morning.
Ms. Hutchins estimated that she, Mr. Kizer, and Mr. Phillips left sometime between 6:00 and 7:00 a.m. on July 1, 2005. Ms. Hutchins testified that, despite the fact that she had stayed up all night and was high on ecstasy, she had to work at a daycare at 8:00 that morning. When they left, "a purple Neon" that the [Petitioner] had been driving was parked in a gravel lot behind the apartment building. Tammy Compton, the victim's downstairs neighbor, testified that she got up around 3:00 a.m. on July 1, 2005, to let her dog out. Ms. Compton saw three cars parked in the back lot, including "a purple car." The same three cars were in the back parking lot when Ms. Compton got up at 5:30 that morning. Ms. Compton testified that when she left for work at 8:00 a.m., "only the purple car [was] there at that time."
Another of the victim's neighbors, Mr. Townsend, testified that he had been at the victim's apartment the night before but left around 2:00 a.m. because he had to work that morning. Mr. Townsend testified that he was running late that morning and got to work around 7:30 a.m. When he left for work that morning, Mr. Townsend "noticed the [Petitioner]'s car was still parked in the back" lot. Mr. Townsend testified that he forgot his lunch that morning so he went back to his apartment around 9:00 a.m. According to Mr. Townsend, the [Petitioner]'s car was no longer in the back lot, but parked in front of the victim's apartment.
Mr. Anderson testified that he had met the victim through the [Petitioner] and that the party at the victim's apartment on June 30, 2005, was for him. Mr. Anderson explained that he was about to move to Kentucky because he was "ready to go" and that he had been living in Clarksville under an assumed name because he "was on the run" from a "drug charge in Alabama." Mr. Anderson testified that the [Petitioner] had been helping him pack and that sometime between midnight and 1:00 a.m., the [Petitioner] drove him to the victim's apartment in a purple Neon. The victim's cousin, Mr. Phillips, took Mr. Anderson home sometime between 4:00 and 5:00 a.m. Mr. Anderson explained that he left the party "early" because he had to be in court over a traffic ticket at 8:00 a.m. Mr. Anderson's brother-in-law, Eddie Holliness, picked him up around 7:30 a.m. and took him to the municipal court. After court, the two men then went to a "junk yard" to look for a transmission. Mr. Anderson testified that while he was at the "junk yard, " he spoke with the [Petitioner] on a cell phone and told the [Petitioner] to stay at his house until he got back so the [Petitioner] could help him with some more packing. The [Petitioner] was not at Mr. Anderson's house when Mr. Anderson and Mr. Holliness returned around 11:00 a.m.
At trial, several witnesses, including Mr. Townsend and Mr. Anderson, testified that the [Petitioner] did not have a job, usually did not have any money, was essentially living in the victim's apartment because he could not afford to stay anywhere else, and "like[d] to use" cocaine. Mr. Townsend and Mr. Anderson both testified that they never saw the [Petitioner] pay for anything except for gasoline. However, on July 1, 2005, the [Petitioner] met with his ex-girlfriend, Sharmar Graham, to take her and her children shopping to get "some book bags and some school clothes." Ms. Graham testified that the [Petitioner] bought her some shoes that day as well, but she could not remember if the [Petitioner] bought any clothes for himself. Ms. Graham further testified that she met the [Petitioner] around 11:30 a.m. that day and estimated that the [Petitioner] spent around $200. Ms. Graham also testified that despite the fact that the [Petitioner] did not have a job or his own place to live, he had purchased things in the past for her and her children. Mr. Anderson testified that later that night, the [Petitioner] came to his house to help pack. According to Mr. Anderson, the [Petitioner] looked "clean" and was wearing "new clothes and new shoes."
Mr. Anderson testified that sometime during the afternoon on July 1, 2005, he learned that the victim had been murdered. According to Mr. Anderson, when the [Petitioner] came over to his house that night the [Petitioner] did not seem upset and did not say anything about the victim's death. Likewise, Mr. Cantrell testified that he used to speak to the [Petitioner] everyday, but he did not see the [Petitioner] for almost two days after the victim's death. Mr. Cantrell recalled that the [Petitioner] did not go to the victim's funeral and did not "show any emotion over" the victim's death. However, Ms. Graham testified that she was with the [Petitioner] when he learned of the victim's death and that the [Petitioner] became "upset" and cried.
Mr. Anderson testified that about an hour after the [Petitioner] arrived at his house on the evening of July 1, 2005, police officers arrived and took the [Petitioner], Mr. Anderson, and his wife, Latricia Holliness, to the police station for questioning regarding the victim's murder. Mr. Anderson testified that he did not give the police officers his real name but that he did tell them what he knew about the victim's death. Ms. Holliness testified that at one point, she was alone in a room with the [Petitioner] when the [Petitioner] gave her the keys to the purple Neon and "mentioned" something about a gun. Ms. Holliness stated that she gave the keys to her husband. Det. Crowe testified that he administered a gunshot residue (GSR) test on the [Petitioner]'s hands that night. According to Det. Crowe, the [Petitioner] became "very nervous" when told about the GSR test. The [Petitioner] told Det. Crowe that "he had fired off fireworks that day." Det. Crowe lied to the [Petitioner] and told him that the GSR test could distinguish between handling fireworks and shooting a gun. When told this, the [Petitioner] "recanted the first statement, " said that he had "been shooting guns too, " and then said that he shot targets "a lot." Det. Crowe testified that the [Petitioner] "became very nervous and was very upset" about the GSR test.
Dr. Staci Turner, an expert in forensic pathology, . . . performed an autopsy on the victim on July 2, 2005 [and] . . . concluded that the cause of death was a gunshot wound to the head. . . . Dr. Turner also testified that there was no soot or stippling present on the victim's body which lead her to conclude that "the gun was fired roughly greater than three feet away from the head." Dr. Turner was unable to determine a time of death for the victim. The police investigation ultimately revealed that the bullet that killed the victim had been fired from a Hi-Point Firearms .380 caliber handgun.
Several witnesses testified that they had seen the [Petitioner] with a .380 caliber handgun both before and after the victim's murder. Mr. Cantrell testified that the [Petitioner] "owned" a .380 caliber handgun and that he had seen the gun at the victim's apartment prior to the murder. Mr. Cantrell also testified that both the [Petitioner] and the victim handled the gun and that the gun never left the victim's apartment. Mr. Cantrell further testified that the victim had showed him a "pinch mark" where the gun had pinched the victim's hand. Mr. Cantrell testified that he assumed the pinch had come from a "crack in the handle, " but he never actually saw a crack on the gun. Mr. ...

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