Byrd v. State, 50685

• Citation: 723 S.W.2d 37
• Decision Date: 12 November 1986
• Docket Number: No. 50685,50685
• Parties: Maurice Oscar BYRD, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 37

723 S.W.2d 37

Maurice Oscar BYRD, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 50685.

Missouri Court of Appeals,

Eastern District,

Division Three.

Nov. 12, 1986.

Motion For Rehearing and/or Transfer Denied Dec. 16, 1986.

Application to Transfer Denied Feb. 17, 1987.

Bradford Kessler, St. Louis, for movant-appellant.

William L. Webster, Atty. Gen., Elizabeth Asst. Atty. Gen., Jefferson City, for defendant-respondent.

KAROHL, Judge.

This is an appeal from the denial of post-conviction relief under Rule 27.26. Movant was convicted of four counts of capital murder after a jury trial and was sentenced to death on each count. The conviction was affirmed by the Missouri Supreme Court in State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985). The facts sufficient to support the conviction are stated in the opinion on direct appeal.

The motion was heard on the basis of movant's pro-se motion. The motion alleged five grounds in support of a request for a new trial. All grounds relate to movant's claim that he was prejudiced by ineffective assistance of counsel during the trial on the criminal charges. We recognize that the motion court permitted evidence and determined issues which are broader than alleged in the motion. The points on appeal are responsive to the broader issues as tried and determined by the motion court. The Attorney General's Office, representing the state, elected to brief and present the issues on the merits. Because the underlying convictions are on charges of capital murder for which the sentences were death we will review on the merits.

The facts relevant to each claim of error will be developed as needed. Our review is limited to a determination of whether the findings, conclusions and judgment of the court are clearly erroneous. Rule 27.26(j). Movant court's findings and conclusions are deemed clearly erroneous only if, after review of the entire record, we are left with the "definite and firm impression that a mistake has been made." Abrams v. State, 698 S.W.2d 15, 17 (Mo.App.1985).

Movant's claims of ineffective assistance of counsel require proof of two related but independent issues. First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). Second, "the defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different," i.e., the defendant has been prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Seales, 580 S.W.2d at 736. In Seales, our Supreme Court suggested that it is not at all desirable that there be one standard applied in the State Courts when adjudicating questions of effectiveness of counsel under Rule 27.26 and a different standard applied when the same prisoner appeals in a Federal Court. We therefore review this case with the belief that Strickland and Seales require movant to prove both elements. Jackson v. State, 672 S.W.2d 367, 368 (Mo.App.1984). On the first issue appellant must overcome a strong presumption of the attorney's competence at the trial level. We ascertain or measure the reasonableness of counsel's conduct on the facts viewed at the time of counsel's conduct, not against the yardstick of hindsight. Strickland, 104 S.Ct. at 2066.

Movant's first claim of error contends that defendant's trial counsel was ineffective because he called Oscar Ford as defendant's witness. Ford was the only witness to give direct, eye-witness testimony that placed defendant at the scene of the crimes. The inculpatory evidence of the state consisted of the testimony of three witnesses who placed defendant at the scene of the crime only by statements made to them on separate occasions wherein defendant admitted his participation. Movant contends that the state's evidence against appellant failed to equal an overwhelming showing conclusively establishing guilt and the decision of trial counsel to call Oscar Ford provided concrete historical facts, first-hand evidence, which enabled the jury to overcome reasonable doubt infecting all of the state's witnesses' "admissions" testimony. Movant contends this was, in effect, per se ineffective assistance of counsel under the described standard. Further, movant contends that this "strategy" was no strategy at all. Accordingly, he contends the usual rule that trial strategy in the selection of witnesses is not a foundation for finding ineffective assistance of counsel, Franklin v. State, 655 S.W.2d 561, 565 (Mo.App.1983), should not be applied. The attribution of strategy does not automatically preclude a finding that the acts fall within the reasonable range of professional behavior. Riley v. Wyrick, 712 F.2d 382, 385 (8th Cir.1983). Defendant relies on Wiley v. Sowders, 647 F.2d 642 (6th Cir.1981). In Wiley, defendant's counsel repeatedly stated to the jury that the defendant was guilty, despite his earlier plea of not guilty and without the client's consent. The court there held that such failure could not be overcome as mere error in judgment or trial strategy. The question therefore is whether there was any rational basis for calling Oscar Ford as defendant's witness.

Defendant's trial counsel was well aware of the testimony which Oscar Ford would give in identifying defendant as one of three black men who fled the scene. Defendant's counsel had the benefit of his own deposition of witness Ford. In addition Ford testified at a pre-trial motion hearing one week before trial. In both the deposition and the motion testimony he testified that he saw three men on the shopping center parking lot, one of whom was carrying a plastic bag, and that they departed in a yellow automobile. In the motion hearing now under review the trial court took judicial notice of the entire transcript of the trial and the court file. The court file contains a copy of the deposition and of the testimony at the pre-trial motion hearing.

Trial defense counsel testified as a witness for movant. He testified that he made the decision to call Oscar Ford. His opening statement for the defendant was given after the close of the state's case. He told the jury that he would introduce testimony from Mr. Ford; that Ford would testify as to what he saw on the parking lot on the morning of the crime; that he would say he there saw Maurice Byrd; that he later identified someone else as one of the three men; that he saw three Negro males leave in a yellow car. Defense counsel also said in his opening statement that defendant would call Faraby Lombardo who was twelve years old at the time of the events and fourteen years old at the time of trial. She would testify that during the day of the killings she heard a description of the events on a news report and that she saw that car not far from the West County Shopping Center.

Ford was called by the defendant. Ford was an endorsed witness by the state but was not endorsed by the defendant. He was declared an adverse witness at defendant's request. He testified that he was at the shopping center performing clean-up duties on the morning of the crimes. He saw three Negro males, one of whom had a trash bag in his hand. He saw them walk to a yellow Ford and leave in that automobile.

Faraby Lombardo was called as a witness. She testified that she lived approximately two miles north of the shopping center which was the scene of the crime. On the day of the crime she left home at around 8:05 a.m. On route to a school bus stop she saw a yellow car turn around and stop. A black man got out of the car and placed a plastic bag in the trunk of the car. The bag was a trash bag that looked pretty full. There were three people in the car but she could not identify them. These events occurred between 8:00 and 8:12 a.m.

The significance of the testimony of witness Ford combined with witness Lombardo relates to the testimony of state's witness Lori Robinette. Lori Robinette and her brother operated a pest control business for which movant was an employee on the date of the crimes. Their offices were located in Earth City which is in northwest St. Louis County and ten miles, more or less, northwest of the scene of the crime. She testified that on the day in question she arrived at work approximately ten minutes to eight and that movant was there at that time and for at least ten minutes thereafter. If the jury accepted the testimony of Faraby Lombardo and the testimony of Lori Robinette as true then the defendant could not have been involved in the crime. He could not have been in the presence of Faraby Lombardo two miles north of the scene of the crime at the same time he was in the presence of Lori Robinette in Earth City.

Without the testimony of Oscar Ford the testimony of Faraby Lombardo had no value to the defendant. He testified he saw three Negro males one of whom had a plastic garbage bag enter and depart in a yellow Ford. Faraby Lombardo testified that she saw one of three Negro males in a yellow car move a plastic garbage bag to the trunk. Her testimony without the testimony of Oscar Ford would have been irrelevant and worthless. After Ford's testimony, her testimony constituted an alternative defense not inconsistent with other defenses.

There is no dispute that defendant's counsel knew witness Ford would be an eye-witness, identifying defendant at the scene of the crimes. However, defendant's counsel also knew witness Ford was subject to impeachment on the identification. Two days after the crime he picked out of a photo line-up three individuals as being involved in the crime. He later recanted as to one and there is evidence that one was of an individual imprisoned in the State of Michigan at all times...