Court of Criminal Appeals of Tennessee, Nashville
MAURICE O. BYRD, JR.
STATE OF TENNESSEE
Assigned on Briefs March 14, 2017
from the Circuit Court for Montgomery County No. 40600534
William R. Goodman, III, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
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.
W. Wedemeyer, J., delivered the opinion of the court, in
which Norma McGee Ogle and Camille R. McMullen, JJ., joined.
W. WEDEMEYER, JUDGE.
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.
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.
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
March 30, 2015, and February 20, 2016, a the
post-conviction 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.
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.
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
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
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
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
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
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. ...