Byrd v. State

• Decision Date: 01 May 2009
• Docket Number: CR–07–0113.
• Citation: 78 So.3d 445
• Parties: Roderick BYRD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

78 So.3d 445

Roderick BYRD

v.STATE of Alabama.

CR–07–0113.

Court of Criminal Appeals of Alabama.

May 1, 2009.

Rehearing Denied June 19, 2009.

Certiorari Denied Aug. 19, 2011

Alabama Supreme Court 1081250.

Glennon F. Threatt, Jr., Birmingham, for appellant.

Troy King, atty. gen., and Thomas Govan, Jr., asst. atty. gen., for appellee.

WINDOM, Judge.

Roderick Byrd appeals his four capital-murder convictions and sentences of death. Byrd was convicted of three counts of capital murder for taking the lives of Kim Olney, John Aylesworth, and Dorothy Smith during the course of a robbery. § 13A–5–40(a)(2), Ala.Code 1975. He was also convicted of an additional count of capital murder because two or more people were murdered by one act or pursuant to one scheme or course of conduct. § 13A–5–40(a)(10), Ala.Code 1975. After the penalty phase of Byrd's trial, the jury recommended, by a vote of 11 to 1, that he be sentenced to death for counts one, two, and four. As to count three, the jury's vote was 10 to 2 for death. The circuit court then ordered and received a presentence report. After holding a sentencing hearing, the circuit court accepted the jury's recommendations and sentenced Byrd to death on all four counts.

At trial, the State's evidence tended to show the following. On November 24, 2005, Thanksgiving Day, Brandon Mitchell went to Byrd's sister, Hellena Byrd's apartment in Birmingham, Alabama, where Roderick Byrd and Jonathan Floyd also lived. Mitchell woke Byrd and enlisted Byrd's and Floyd's aid in his plan to commit a robbery at the Airport Inn (hereinafter "the Inn"). After agreeing to help Mitchell commit the robbery, Byrd returned to his bedroom and put on a black shirt, black pants, and black shoes. Shortly thereafter, Floyd drove Mitchell and Byrd to the Inn in Floyd's automobile.

According to Byrd's statement, while they were in the parking lot of the Inn, Mitchell, Floyd, and Byrd discussed the robbery. At some point before entering the Inn, Byrd put on a pair of black gloves to prevent leaving physical evidence of his participation in the crime; however, neither he nor Mitchell, who had previously been employed at the Inn, made any attempt to conceal their facial identities.¹ Thereafter, Mitchell and Byrd entered the Inn—each armed with one pistol—and encountered Kim Olney, the desk clerk, and John Aylesworth, a truck driver, who was waiting in the lobby for a ride to Texas.

Once in the Inn, Mitchell focused his attention on Olney while Byrd used his pistol to subdue Aylesworth, a former Marine. At some point during the robbery, Dorothy Smith, a traveler from New York who was in Alabama visiting family for Thanksgiving, entered the lobby of the Inn to rent a room for the night. After she entered the lobby, Smith, like Olney and Aylesworth, was held at gunpoint. During this time, Mitchell took approximately $300 from a cash drawer that was located behind the clerk's desk and also tried unsuccessfully to open a safe. Mitchell and Byrd also took various items from the three victims, including a tote bag, a duffel bag, clothes, and money. During these events, Olney, Aylesworth, and Smith were each shot behind the ear at close range with .38 caliber pistols.² Olney was also shot in the arm. All three victims died as result of a gunshot wound to the head. Forensic testing of the projectiles recovered from the crime scene and the victims' bodies established that Olney and Smith were shot with the same .38 caliber pistol and that Aylesworth was shot with a different .38 caliber pistol.

After the robbery, Mitchell and Byrd left the Inn on foot. They traveled around to the back of the Inn and climbed a fence that separated the Inn from a neighborhood. Clifford Davis and James Jackson, who lived in one of the houses behind the Inn, saw two men, carrying various items, climb the fence and enter the neighborhood. Although Davis and Jackson could not make a positive identification, they testified that one of the two men they saw climb the fence was wearing all black, including black shoes. Davis and Jackson testified that after the two men climbed the fence and entered the neighborhood, they went in different directions.

Shortly after Mitchell and Byrd separated, Mitchell telephoned Floyd and asked Floyd to come pick him up. Floyd found Mitchell near First Avenue in Birmingham and drove Mitchell to Fifth Avenue South. Floyd dropped Mitchell off on Fifth Avenue and then drove around looking for Byrd. After unsuccessfully searching for Byrd, Floyd returned to Hellena Byrd's apartment where he found Byrd crying and shaking. At that point, Byrd made a statement to Floyd indicating that Mitchell shot all three people at the Inn.

Floyd and Byrd remained at the apartment for approximately 30 minutes. Then they, along with Hellena Byrd and Byrd's girlfriend, Lasundra Mosley, went to Byrd's grandmother's house, where they ate Thanksgiving dinner.

At some point after Thanksgiving, Byrd went to Georgia where he was apprehended. While in Georgia at the Henry County jail, Byrd gave a statement to two Birmingham police officers in which he confessed to participating in the robbery, but denied any involvement in the murders.

I.

Byrd first argues that "the trial court erred by denying [his] motion to remove the death penalty from consideration...." (Byrd's Brief at 30.) Specifically, Byrd contends that he is mentally retarded; therefore, his sentence of death constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as interpreted in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

In Atkins, the United States Supreme Court held that the execution of mentally retarded capital offenders violates the Eighth Amendment's prohibition of cruel and unusual punishment. Id. at 321. The Court, however, declined to establish a national standard for determining whether a capital offender is mentally retarded and, instead, left to the states "the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences." Id. at 317.

The Alabama Legislature has not yet established a method for determining whether a capital defendant is mentally retarded and, thus, ineligible for a sentence of death. "However, the Alabama Supreme Court, in Ex parte Perkins, 851 So.2d 453 (Ala.2002), adopted the most liberal definition of mental retardation as defined by those states that have legislation barring the execution of a mentally retarded individual." Smith v. State, [Ms. CR–97–1258, Jan. 16, 2009] ––– So.3d ––––, –––– (Ala.Crim.App.2009) (opinion on return to fourth remand); see also Smith v. State, [Ms. 1060427, May 25, 2007] ––– So.3d ––––, –––– (Ala.2007) ("Until the legislature defines mental retardation for purposes of applying Atkins, this Court is obligated to continue to operate under the criteria set forth in Ex parte Perkins. "). Pursuant to Ex parte Perkins, "to be considered mentally retarded, [a capital defendant] must have significantly subaverage intellectual functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive behavior." Ex parte Perkins, 851 So.2d at 456; see also Atkins, 536 U.S. at 321 n. 5. Further, "these [two deficits] must have manifested themselves during the developmental period (i.e., before the defendant reached age 18)." Ex parte Perkins, 851 So.2d at 456; Brownlee v. Haley, 306 F.3d 1043, 1073 (11th Cir.2002) (recognizing that mental retardation generally requires a showing of an IQ of 70 or below, significant limitations in adaptive skills, and the manifestation of these two deficits during the developmental years). "Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18." Smith v. State, [Ms. 1060427, May 25, 2007] ––– So.3d at ––––; see also Smith v. State, [Ms. CR–97–1258, Jan. 16, 2009] ––– So.3d at –––– (opinion on return to fourth remand) (same); cf. Ex parte Perkins, 851 So.2d at 456 (holding that Perkins was not mentally retarded because, among other reasons, Perkins's full-score adult IQ was 76); Roper v. Simmons, 543 U.S. 551, 578–79, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (focusing on defendants' culpability "when their crimes were committed").

"In the context of an Atkins claim, the defendant has the burden of proving by a preponderance of the evidence that he or she is mentally retarded." Smith v. State, [Ms. 1060427, May 25, 2007] ––– So.3d at ––––; see Smith v. State, [Ms. CR–97–1258, Jan. 16, 2009] ––– So.3d at ––––. " ‘The question of [whether a capital defendant is mentally retarded] is a factual one, and as such, it is the function of the factfinder, not this Court, to determine the weight that should be accorded to expert testimony of that issue.’ " Smith v. State, [Ms. CR–97–1258, Jan. 16, 2009] ––– So.3d at –––– (quoting Atkins v. Commonwealth, 266 Va. 73, 581 S.E.2d 514, 515 (2003) ). As the Alabama Supreme Court has explained, questions regarding weight and credibility determinations are better left to the circuit courts, "which [have] the opportunity to personally observe the witnesses and assess their credibility." Smith v. State, [Ms. 1060427, May 25, 2007] ––– So.3d at –––– (quoting Smith v. State, [Ms. CR–97–1258, Sept. 29, 2006] –––So.3d ––––, –––– (Ala.Crim.App.2006) (Shaw, J., dissenting) (opinion on return to third remand)).

This court reviews the circuit court's findings of fact for an abuse of discretion. Snowden v. State, 968 So.2d 1004, 1012 (Ala.Crim.App.2006). " ‘ "A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision." ’ " Hodges v. State, 926 So.2d 1060, 1072 (Ala.Crim.App.20...