Byrd v. Armontrout, 88-1903

Citation880 F.2d 1
Decision Date06 September 1989
Docket NumberNo. 88-1903,88-1903
PartiesMaurice Oscar BYRD, Appellant, v. William ARMONTROUT, Warden of Missouri State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Burton H. Shostak, D. J. Kerns, Clayton, Mo., for appellant.

Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.

Before McMILLIAN, ARNOLD, and BOWMAN, Circuit Judges.

BOWMAN, Circuit Judge.

Maurice Oscar Byrd appeals the District Court's 1 denial of his petition for a writ of habeas corpus. We affirm.

In 1982, Byrd was convicted in a state trial court of four counts of capital murder. The murders were committed in connection with a robbery at Pope's Cafeteria in the West County Shopping Center in St. Louis County. On October 23, 1980, two employees of Pope's arrived for work around 7:35 a.m. to discover the bodies of James Wood, Carolyn Turner, and Edna Ince in the cafeteria business office. Each had been shot to death. A fourth victim, Judy Cazaco, had been shot through both eyes, but was still alive. Several thousand dollars were missing from the two safes in the business office. Cazaco died about ten days later.

Byrd was arrested in Savannah, Georgia some eight months later and charged with having murdered the Pope's Cafeteria employees. At trial, the state introduced evidence showing that Byrd had serviced Pope's Cafeteria in the course of his employment with a pest control service, that he had left the St. Louis area shortly after the robbery and killings took place, that he had shown up in Georgia soon thereafter with a substantial amount of cash, and that Byrd had stated to Sandra Sanders Byrd that he had killed three people to be with her and their baby in Georgia. The state also introduced the testimony of two men Byrd had known in Georgia, one his former brother-in-law and the other a cell mate of Byrd in the Chatham County, Georgia jail, both of whom testified Byrd had confessed to them that he had killed people in a restaurant robbery. The jury found Byrd guilty as charged.

Following the sentencing phase of Byrd's bifurcated trial, the jury voted to impose the death penalty, and Byrd was sentenced to death on each of the four counts. His conviction and sentences were affirmed on direct appeal by the Missouri Supreme Court, sitting en banc. See State v. Byrd, 676 S.W.2d 494 (Mo.1984) (en banc), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985). Byrd then filed for state post-conviction relief under Missouri Supreme Court Rule 27.26. The trial court's denial of Byrd's 27.26 motion was affirmed by the Missouri Court of Appeals. See Byrd v. State, 723 S.W.2d 37 (Mo.Ct.App.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 203, 98 L.Ed.2d 155 (1987).

Byrd then filed for federal habeas corpus relief in the District Court. Finding no need for an evidentiary hearing, the District Court, in a thorough and well-reasoned opinion, denied relief on each of the nineteen grounds that Byrd asserted. See Byrd v. Armontrout, 686 F.Supp. 743 (E.D.Mo.1988). This appeal followed.

I.

Byrd contends that his trial counsel was ineffective in several respects. Our task is to examine each claim to determine whether counsel's conduct was deficient, and if so, whether that conduct so prejudiced Byrd as to undermine confidence in the outcome of the trial. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). Should we conclude that counsel's conduct was reasonable under the circumstances we need not reach the issue of prejudice.

Byrd first complains that counsel's decision to call Oscar Ford to the stand constituted ineffective assistance of counsel. Ford was a maintenance man at the West County Shopping Center, and had been sweeping near the entrance to Pope's Cafeteria on the morning of the murders. Immediately after the murders, Ford was taken by police to several different police stations and was held for nearly two days of questioning. During this period, Ford made photo identifications of three black men (none of them Byrd), claiming he had seen them exit the shopping center and go toward a yellow car. Apparently after discovering the identity of one of the men whose photograph he had picked out, Ford recanted his identifications. He was released and went into hiding. Several months later, after Byrd's picture had appeared in a St. Louis newspaper in connection with the Pope's investigation, Ford went to Georgia and picked Byrd out of a lineup. At trial, Ford testified that he had seen Byrd exit the shopping center on the morning of the murders. Byrd contends that counsel's decision to call the one man who would place him at the scene of the crime was unreasonable. We disagree.

The testimony given by Byrd's trial counsel at the 27.26 hearing establishes a reasonable basis for the decision to call Oscar Ford. Counsel was seeking to establish a connection between Ford's original statements to police about the three black men and the yellow car and the testimony of a young girl named Faraby Lombardo, who would later testify that she had seen three black men in a yellow car in her neighborhood near the shopping center around 8:10 that same morning. Such testimony would clearly be exculpatory, since the state's own case had included the testimony of a woman with whom Byrd worked that Byrd was already at work around 7:50 that morning. Although counsel was taking the risk that Ford would place Byrd at the scene, it was a calculated risk, since counsel could attack the in-court identification of Byrd by pointing out the inconsistency between Ford's present story and the original story he told police right after the incident. It seems quite reasonable to us that counsel would decide to use Ford's testimony to establish the "yellow car" defense.

Byrd argues that there were other ways counsel could have established the link to Faraby's testimony. 2 In support of this claim, Byrd attached to his petition for habeas corpus copies of police lead sheets reflecting interviews conducted by police with several people on the day of the murders, all of which mention the presence of a yellow car on the parking lot that morning. In addition, Byrd argues, counsel could have produced a videotape made of Ford's original photo identification of the three black men, none of whom was Byrd.

We are not persuaded that the existence of this other potential evidence in any way undermines the reasonableness of counsel's decision to call Ford to give live testimony at Byrd's trial. As a reviewing court, we must make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time," indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Here, counsel had taken Ford's deposition. He was well aware that Ford would place Byrd at the scene, but he also knew that Ford's testimony could greatly benefit the defense. His decision to call Ford, drawing attention to the fact that the state had declined to call the only witness who was near Pope's Cafeteria when the robbery and murders were perpetrated, was well within the range of options available to a reasonably competent attorney faced with the necessity of constructing a defense in this case. To hold that counsel was not ineffective we need not find that he made the best possible choice, but that he made a reasonable one. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable...." Id. at 690, 104 S.Ct. at 2066.

Similarly, we think that counsel's decision to call Kenneth Ziegler to the stand during surrebuttal was not unreasonable. Ziegler was an investigator with the Public Defender's Office. After Byrd testified that some of the money in his possession when he arrived in Georgia was stolen from a bank bag in a car he had come upon in a parking lot on Olive Street in St. Louis County, the state introduced evidence that no such thefts had been reported from that area. In response, defense counsel called Ziegler, who testified that he also had conducted an investigation but was unable to find any report of such a theft. Byrd contends that Ziegler's testimony undermined his own, and thereby served the state's interests.

The Missouri Court of Appeals, in reviewing the trial court's denial of Byrd's 27.26 motion, found that the "brief testimony of the investigator was offered to counter the suggestion that the evidence of the defendant with regard to the theft was a recent fabrication." 723 S.W.2d at 42. The District Court concluded that this was a state court finding of fact entitled to the 28 U.S.C. Sec. 2254(d) presumption of correctness because it was fairly supported by the record. 3 686 F.Supp. at 783. See also Strickland, 466 U.S. at 698, 104 S.Ct. at 2070. We believe that the District Court's conclusion is clearly correct.

We cannot say that counsel's decision to demonstrate by Ziegler's testimony that Byrd's theft story was not a recent fabrication was unreasonable, especially since the jury already had been informed by the state's evidence that no such theft had been reported. That fact also precludes a finding that Byrd was prejudiced by this decision.

We hold that Byrd has failed to demonstrate that he received ineffective assistance of counsel at trial. 4

II.

Byrd, who is black, argues that his conviction by an all-white jury violated the Constitution. We disagree.

First, because Byrd's conviction was final, in that his conviction had been affirmed by the Missouri Supreme Court and certiorari had been denied by the Supreme Court, before Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69...

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