Byrd v. Buckner

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

GEBAR BYRD, )

)

Petitioner, )

)

vs. ) Case No. 4:18CV1760 RHH

)

MICHELE BUCKNER1, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner Gebar Byrd’s petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is fully briefed and ready for

disposition.

On October 14, 2011, a jury in the Circuit Court of the City of St. Louis, Missouri, found

Petitioner guilty of one count of murder in the second degree (Count I), one count of involuntary

manslaughter (Count II), one count of endangering the welfare of a child in the first degree

(Count III), and one count of domestic assault in the second degree (Count IV). On December

9, 2011, Petitioner was sentenced to consecutive sentences of life imprisonment on Count I, and

seven years’ imprisonment on each of Counts II through IV. The Missouri Court of Appeals

affirmed the convictions and sentences. State v. Byrd, 389 S.W.3d 702 (Mo. App. 2012).

Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court

Rule 29.15, which was denied after an evidentiary hearing. The Missouri Court of Appeals

1 Petitioner is currently incarcerated at the South Central Correctional Center in Licking,

Missouri. Michele Buckner is the Warden and proper party respondent. See 28 U.S.C. § 2254,

Rule 2(a). Because Petitioner is challenging a future consecutive sentence, Andrew Bailey, the

Attorney General of Missouri, is also a proper respondent. See 28 U.S.C. § 2254, Rule 2(b).

Petitioner is currently incarcerated at the South Central Correctional Center in Licking,

Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following five

claims for relief:

(1) That the trial court erred in denying Petitioner’s motion for judgment of

acquittal at the close of the State’s case;

(2) That the trial court erred in denying Petitioner’s motion to suppress

statements and in admitting testimony and evidence regarding his

statements to law enforcement;

(3) That Petitioner received ineffective assistance of counsel, in that trial

counsel failed properly to object to an improper statement from the

prosecutor during the State’s rebuttal closing argument;

(4) That Petitioner received ineffective assistance of counsel, in that trial

counsel failed to present a diminished capacity defense; and

(5) That the post-conviction motion court erred in setting an evidentiary

hearing with only nine days’ notice, thereby constructively denying

Petitioner the opportunity to have trial counsel testify on his behalf.

The Court will address the claims in turn.

DISCUSSION

I. Ground 1

As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in

denying Petitioner’s motion for judgment of acquittal at the close of the State’s case. (§ 2254

Petition, PP. 13-15). Specifically, Petitioner asserts “the State failed to prove beyond a

reasonable doubt that Byrd committed second degree murder, because even viewing the evidence

in a light most favorable to the State, there was insufficient evidence from which a reasonable

juror could find Byrd knew or was aware that his conduct would cause or was practically certain

to cause the death of Yasmin Rodriguez.” (Id., P. 13).

Petitioner raised this claim on direct appeal from his convictions. The Missouri Court of

Viewed in the light most favorable to the verdict, the evidence at trial

revealed the following: Defendant2 and his girlfriend, Yasmin Rodriguez, had a

son named Gebar Byrd Jr. On March 23, 2010, Defendant and Yasmin took

Gebar Jr., then twenty-three months old, to a park adjacent to the Mississippi

River. Defendant and Yasmin argued, and Yasmin informed Defendant that she

was leaving him. Defendant was angry because he believed Yasmin was

planning to take Gebar Jr. to Mexico. Defendant also felt that Yasmin had

“trapped” him by using Gebar Jr. to prevent Defendant from going to Atlanta.

Yasmin walked toward the river with Gebar Jr. Defendant pushed

Yasmin into the water while she was holding Gebar Jr. Yasmin did not know

how to swim, and she had previously advised Defendant of that fact. Defendant

jumped into the water to assist Gebar Jr. Defendant was unable to help Gebar Jr.

or Yasmin, and he saw them sink into the water. Defendant left the park and

later disposed of a child safety seat that was in his car and photographs of Gebar

Jr.

On March 28, 2010, Yasmin’s sister reported to the University City Police

Department that Yasmin was missing. Detective Shannon Eaton and Detective

Christopher Nappier of the University City Police Department questioned

Defendant that day about the whereabouts of Yasmin and Gebar Jr. Defendant

stated that he did not know where they were. On April 9, 2010, police recovered

Yasmin's body from the Mississippi River after a fisherman discovered it.

On April 11, 2010, Defendant met a woman named Melissa Brown.

Defendant informed Ms. Brown that his son’s birthday was approaching. Ms.

Brown inquired whether Defendant planned to find Gebar Jr. and spend his

birthday with him. Defendant answered that “he did not need to look for his son

because he already knew where they were ... and he would not be able to get to

them.”

On April 21, 2010, Detectives Scott Sailor and Lon Ray of St. Louis

Police Department questioned Defendant about Yasmin’s disappearance.

Defendant denied having any knowledge about the matter.

On May 26, 2010, officers from the University City Police Department

arrested Defendant for an offense unrelated to Yasmin and Gebar Jr. While

Defendant was in custody, Detective Eaton asked Defendant if he was willing to

discuss Yasmin’s disappearance, and Defendant responded that he was. During

the interview, Defendant stated that he knew nothing about the disappearance of

Yasmin and Gebar Jr.

Later that day, Detective Nappier interviewed Defendant. Defendant

2 Petitioner is referred to as “Defendant” by the Missouri Court of Appeals on direct appeal.

Louis. Defendant informed Detective Nappier that after he and Yasmin argued at

the park, Yasmin entered the water while holding Gebar Jr. Defendant stated that

he tried to save them but was unable to do so because the water was too cold.

Defendant showed Detective Nappier, among others, where the incident occurred.

Detectives Nappier and Sailor transported Defendant to the University

City Police Department. There, the detectives interviewed Defendant.

Defendant repeated his earlier statement that Yasmin entered the water while

holding Gebar Jr.

Detective Sailor escorted Defendant to the St. Louis Police Department,

where Detectives Sailor and Ray interviewed Defendant. Defendant admitted

that he pushed Yasmin into the Mississippi River while she was holding Gebar Jr.

and that he knew Yasmin did not know how to swim. When the detectives asked

Defendant what his intent was when he pushed Yasmin into the river, Defendant

responded that he “wasn’t taking [his] medication.” Detective Sailor believed

that Defendant “tr[ied] to dodge the question by saying ... he wasn’t taking his

medication at the time.”

The State charged Defendant with two counts of murder in the first degree

and one count of endangering the welfare of a child in the first degree in

connection with the events of March 23, 2010. The State also charged Defendant

with one count of second-degree domestic assault with regard to an incident on

April 30, 2009.

State v. Byrd, 389 S.W.2d at 705-706. The court continued to deny Petitioner’s claim as

follows:

When a criminal defendant challenges the sufficiency of the evidence, this

court must determine “whether there is sufficient evidence from which a

reasonable juror might have found the defendant guilty beyond a reasonable

doubt.” State v. Primm, 347 S.W.3d 66, 72 (Mo. banc 2011). We view the

evidence “in the light most favorable to the verdict, considering all favorable

inferences and disregarding all contrary inferences.” Id. “This inquiry does not

require a court to ask itself whether it believes that the evidence at trial

established guilt beyond a reasonable doubt.” State v. Bateman, 318 S.W.3d 681,

687 (Mo. banc 2010) (quotation omitted). “Instead, the relevant question is

whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. (quotation omitted).

In his first point on appeal, Defendant claims that the trial court erred in

denying his motion for judgment of acquittal at the close of the State’s evidence

because the evidence was insufficient to support his conviction of second-degree

murder. Specifically, Defendant alleges that the State failed to present sufficient

Yasmin’s death. The State counters that the evidence demonstrated that

Defendant pushed Yasmin into the Mississippi River while angry at her and that

he knew she was unable to swim.

“A person commits the crime of murder in the second degree if he ...

[k]nowingly causes the death of another person....” Mo. Rev. Stat. §

565.021.1(1). A person acts knowingly “[w]ith respect to a result of his conduct

when he is aware that his conduct is practically certain to cause that result.” Mo.

Rev. Stat. § 562.016.3(2).

“Direct proof of the required mental state is seldom available, and such

intent is usually inferred from circumstantial evidence.” State v. Letica, 356

S.W.3d 157, 166 (Mo. banc 2011). “The defendant’s mental state may be

determined from evidence of the defendant’s conduct before the act, from the act

itself, and from the defendant’s subsequent conduct.” State v. McKinney, 253

S.W.3d 110, 114 (Mo. App. W.D. 2008) (quotation omitted). “It will be

presumed that a person intends the natural and probable consequences of his

acts.” State v. Stiegler, 129 S.W.3d 1, 4 (Mo. App. S.D. 2003) (quotation

omitted). “A person is presumed to have intended that death follow acts which

are likely to produce that result.” Id. (quotation omitted).

Here, the State presented evidence that Defendant was aware that his

conduct was practically certain to cause Yasmin’s death. Defendant and Yasmin

argued, and Yasmin informed Defendant that she was leaving him. Defendant

was angry because he believed Yasmin was planning to take Gebar Jr. to Mexico.

Defendant also felt that Yasmin had “trapped” him by using Gebar Jr. to prevent

Defendant from going to Atlanta. Defendant confessed that although he knew

Yasmin was unable to swim, he pushed her into the Mississippi River. A jury

may reasonably infer that Defendant knew that death was a natural consequence

of pushing Yasmin into the Mississippi River when she could not swim.

Defendant argues that the only evidence of his intent was his statements to

police and that those statements were insufficient to establish that he knowingly

killed Yasmin. In support of his argument, Defendant relies on his comment,

when police asked about his intent, that he “wasn't taking [his] medication.”

However, the fact that Defendant blamed a lack of medication instead of stating

that he knowingly caused Yasmin’s death does not render the evidence supporting

his second-degree murder conviction insufficient. “An intent to kill in the

context of second-degree murder may be inferred when, under the circumstances,

the prohibited result expected may reasonably follow from a voluntary act,

irrespective of any subjective desire on the part of the offender to have

accomplished the prohibited result.” State v. Edwards, 30 S.W.3d 226, 232 (Mo.

App. E.D. 2000).

Moreover, Detective Sailor testified that Defendant “tr[ied] to dodge the

question by saying ... he wasn’t taking his medication at the time.” “[A] jury ...

Stiegler, 129 S.W.3d at 3 (quotation omitted). The jury was entitled to believe

Detective Sailor’s testimony that Defendant did not truthfully answer questions

about his intent. Point denied.

Id. at 709-710 (footnote omitted).

With respect to federal court review of state court conclusions, 28 U.S.C. § 2254 states in

pertinent part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Upon consideration, this Court holds the Missouri State Court’s ruling was neither

contrary to federal law nor an unreasonable determination of the facts in light of the evidence

presented. The United States Supreme Court has held that in reviewing whether the evidence

presented in state court was sufficient to support a conviction, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original)

(citation omitted). See also Miller v. Lock, 108 F.3d 868, 870 (8th Cir. 1997). This standard

“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson, 443 U.S. at 319. See also Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003)

all conflicting inferences in the record in favor of the state, and we must defer to that

resolution.”); Weston v. Dormire, 272 F.3d 1109, 1111 (8th Cir. 2001) (citations omitted) (“In

determining the sufficiency of the evidence in habeas cases under 28 U.S.C. § 2254, we view the

evidence in the light most favorable to the prosecution and decide whether any rational jury

could have found, beyond a reasonable doubt, all of the elements of the crime.”).

Here, the State presented evidence that Petitioner was aware his conduct was practically

certain to cause Yasmin’s death. Detective Nappier testified Petitioner stated during

questioning that he and Yasmin had argued on the date in question. (Resp. Exh. A, P. 308).

Yasmin’s sister testified that Yasmin did not know how to swim, and Detective Sailor testified

that Petitioner confessed to pushing her into the Mississippi River. (Id., PP. 235, 354). Taken

together, this evidence was sufficient to permit a reasonable jury to find the elements of the

crime of murder in the second degree established beyond a reasonable doubt. In other words,

the jury could reasonably infer Petitioner knew that death was a natural consequence of pushing

Yasmin into the Mississippi River when she could not swim. The decision of the Missouri court

thus is entitled to deference, and Ground 1 is denied.

II. Ground 2

As stated above, in Ground 2 of his petition Petitioner asserts that the trial court erred in

denying Petitioner’s motion to suppress statements and in admitting testimony and evidence

regarding his statements to law enforcement. (§ 2254 Petition, PP. 15-21). Petitioner raised

this claim on direct appeal. After describing the circumstances surrounding Petitioner making

statements to law enforcement (as delineated above), the court continued as follows:

Prior to trial, Defendant filed a motion to suppress statements of

Defendant that the State intended to admit in evidence. As grounds, Defendant

alleged that the police did not advise him of his constitutional rights prior to

counsel appointed for him. Defendant also asserted that the police did not cease

interrogation after Defendant invoked his right to remain silent and to counsel.

The trial court held a hearing on the motion. Detective Eaton testified

that prior to questioning Defendant on May 26, he advised Defendant of his

Miranda rights. Defendant stated that he wished to waive his rights and signed a

form entitled “University City Miranda Rules” confirming his waiver. Detective

Nappier testified that before he interviewed Defendant later that day, he reminded

Defendant of his Miranda rights. Defendant waived his rights. Detectives

Nappier and Sailor testified that they subsequently interviewed Defendant. After

approximately one hour, Defendant informed them that he no longer wanted to

speak with them and that he “wanted a lawyer.” The detectives ended the

interview.

Detective Sailor testified that after he transported Defendant to the St.

Louis Police Department later that day, Defendant advised Detective Sailor that

he was “ready to tell [him] everything about what happened” to Yasmin and

Gebar Jr. Detective Sailor reminded Defendant that he had requested an

attorney. Defendant stated that he did not need an attorney, he was ready to tell

the detective “everything that happened,” and he was “tired and…wanted to get it

over with.” Detective Sailor asked Defendant if he was sure, and Defendant

stated that he was sure. Detective Ray testified that he heard the foregoing

conversation between Defendant and Detective Sailor.

The State introduced a video recording of the interview that followed

Defendant’s statement to Detective Sailor that he was “ready to tell [him]

everything.” At the beginning of the interview, Detective Sailor advised

Defendant that he had the right to remain silent, to counsel, and to appointed

counsel. Defendant stated that he understood his rights. Detective Sailor asked

Defendant, “Having understood those rights, are you willing to talk to me about

this incident?” Defendant responded “Yes.” Detective Sailor testified that

Defendant had advised him in April that he was “on Haldol” and that he had been

“institutionalized.”

The trial court found that Defendant made a knowing, intelligent, and

voluntary waiver of his constitutional rights. The trial court denied Defendant’s

motion to suppress his statements….

The State also called Detectives Eaton, Nappier, and Sailor to testify [at

trial]. The State played video recordings of the May 26, 2010 interviews of

Defendant by Detectives Nappier and Sailor at the University City Police

Department and by Detectives Sailor and Ray at the St. Louis Police Department.

Defendant renewed his motion to suppress his statements and objected to the

State’s introduction of his statements through the recorded interviews and the

testimony of Detectives Eaton, Nappier, and Sailor. The trial court denied the

motion and overruled the objections.

State v. Byrd, 389 S.W.3d at 706-707. The Missouri Court of Appeals then denied Petitioner’s

claim as follows:

In his second point on appeal, Defendant argues that the trial court erred in

denying his motion to suppress statements. More specifically, Defendant

maintains that the police questioned him after he invoked his right to counsel

without guaranteeing that his new waiver of rights was unequivocal and that the

police knew that Defendant’s mental capacity to waive his rights was

“questionable” due to his use of anti-psychotic drugs. The State responds that

Defendant initiated communication with the police after invoking his right to

counsel and that no evidence supports his claim that he was mentally incompetent

to waive his rights.

Appellate review of a trial court’s decision on a motion to suppress

evidence “is limited to a determination of whether substantial evidence exists to

support the trial court’s ruling,” and we will reverse the ruling only if it is clearly

erroneous. State v. Carollo, 172 S.W.3d 872, 873 (Mo. App. S.D. 2005). We

“consider[] the record made at the suppression hearing as well as the trial

testimony” and review all facts and reasonable inferences therefrom in the light

most favorable to the trial court’s decision. Id. This court defers “to the trial

court’s superior opportunity to determine the credibility of witnesses.” State v.

Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998).

“The Fifth Amendment’s prohibition against self incrimination provides

an accused the right to counsel during custodial interrogation.” State v.

Nicklasson, 967 S.W.2d 596, 606 (Mo. banc 1998) (citing Miranda v. Arizona,

384 U.S. 436, 478 (1966)). “Once an accused requests counsel, questioning must

cease until counsel has been made available, unless the accused initiates further

communication with police.” Id. (citing Edwards v. Arizona, 451 U.S. 477,

485-86 (1981)). “[T]he State ha[s] the burden to show [the defendant] initiated

further discussions with the police and voluntarily, knowingly, and intelligently

waived the right he had invoked.” State v. Cook, 67 S.W.3d 718, 721 (Mo. App.

S.D. 2002).

Defendant spoke with several detectives on May 26 and, at one point,

invoked his right to remain silent and to counsel. Prior to the first interview,

Detective Eaton advised Defendant of his Miranda rights. Defendant stated that

he wished to waive his rights and signed a written document confirming his

waiver. When Detective Nappier interviewed Defendant later that day, he

reminded Defendant of his Miranda rights. Defendant again waived his rights.

Detectives Sailor and Nappier spoke with Defendant in a third interview on May

26. After approximately one hour, Defendant informed them that he no longer

wanted to speak with them and that he “wanted a lawyer.” The detectives ended

the interview.

Detective Sailor. Detective Sailor testified that when he and Defendant arrived at

the St. Louis Police Department, Defendant advised Detective Sailor that he was

“ready to tell [him] everything about what happened” to Yasmin and Gebar Jr.

Detective Sailor reminded Defendant that he had requested an attorney.

Defendant stated that he did not need an attorney, he was ready to tell the

detective “everything that happened,” and he was “tired and…wanted to get it

over with.” Detective Sailor asked Defendant if he was sure, and Defendant

stated that he was sure. Detective Ray testified that he heard the foregoing

conversation between Defendant and Detective Sailor.

The video recording of the interview that followed demonstrates that

before asking Defendant any further questions, Detective Sailor reminded

Defendant that he had the right to remain silent, to counsel, and to appointed

counsel. Defendant stated that he understood his rights. Detective Sailor asked

Defendant, “Having understood those rights, are you willing to talk to me about

this incident?” Defendant responded, “Yes.” At no time during the recorded

interview did Defendant request counsel or ask to discontinue the questioning.

The detectives’ testimony and the video recording constitute substantial evidence

supporting the trial court’s denial of Defendant’s motion to suppress his

statements.

Defendant argues that the police failed to guarantee that the new waiver of

his rights was unequivocal. In support of this argument, Defendant contends that

the detectives did not require him to sign another document confirming his

waiver. However, a defendant’s oral statement that he would like to inform

police what happened is sufficient to constitute a voluntary waiver of his

previously-invoked rights. See, e.g., Cook, 67 S.W.3d at 722 (after invoking his

right to counsel, the defendant advised police that he “would like to tell his side of

the story”).

Defendant also asserts that the police knew that his mental capacity was

“questionable” due to his use of anti-psychotic drugs. Detective Sailor testified

at the suppression hearing that Defendant had advised him that he was “on

Haldol” and that he had been “institutionalized.” However, Defendant’s motion

to suppress contains no mention of Haldol or any other medication. In addition,

no evidence was produced at the suppression hearing or at trial regarding the

effects of Haldol, whether Defendant was taking Haldol or any other medication

at the time of questioning, or whether Defendant was mentally competent to

waive his rights. Thus, no evidence in the record supports Defendant’s claim.

Point denied.

Id. at 707-709.

As stated above, because this claim was fully adjudicated on the merits in state court

proceedings, this Court cannot grant relief unless such adjudication “(1) resulted in a decision

as determined by the Supreme Court of the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d).

“A Miranda warning must be administered when a suspect undergoes custodial

interrogation, which occurs when an officer’s interaction with the suspect is ‘likely to elicit an

incriminating response.’” United States v. Torres-Lona, 491 F.3d 750, 757 (8th Cir. 2007)

(quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).

Miranda warnings are “not themselves rights protected by the Constitution but [are] instead

measures to ensure that the [suspect’s] right against compulsory self-incrimination [is]

protected.” Moran v. Burbine, 475 U.S. 412, 425, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)

(internal quotation marks and citations omitted).

As noted above, the trial court heard evidence that prior to questioning Petitioner on May

26, 2010, Detective Eaton advised Petitioner of his Miranda rights. Petitioner stated that he

wished to waive his rights, and signed a form to that effect. Petitioner again agreed to waive his

rights before being interviewed by Detectives Nappier and Sailor. When Petitioner informed

the two detectives that he no longer wanted to speak with them without a lawyer, they ended the

interview, and only resumed questioning Petitioner after he initiated the discussion by stating he

was ready to tell the detectives what had happened. The trial court found that Petitioner made a

knowing, intelligent, and voluntary waiver of his constitutional rights, and denied his motion to

suppress statements.

At the outset of trial, Petitioner’s counsel renewed his motion to suppress. (Resp. Exh.

A, PP. 215-216). He again renewed the motion prior to Detective Sailor testifying, and the

Court maintained its denial as follows:

his statements and his waiver were voluntary. The Court finds that the defendant

did invoke his right to counsel during the University City interview and that

police properly stopped interrogating him.

They then transferred him to the City Police Department where the City

interview took place. The Court finds that without coercion, without

intimidation, without any improper conduct by police, defendant initiated further

communication with police. Then he re-engaged police to again waive counsel

and make an additional statement. The Court will clarify that the defendant a

second time voluntarily waived both his right to counsel and made a full and

voluntary statement….Objection will be denied.

(Id. at 337-338).

The Missouri Court of Appeals affirmed the ruling, finding substantial evidence

supported the trial court’s denial of Petitioner’s motion to suppress his statements. The court

held Petitioner’s oral statement that he would like to inform police what happened was sufficient

to constitute a voluntary waiver of his previously-invoked rights. See State v. Byrd, 389 S.W.3d

at 708. With respect to Petitioner’s claim regarding his use of anti-psychotic drugs, the court

noted Petitioner’s motion to suppress contained no mention of Haldol or any other medication,

nor was any evidence presented at the suppression hearing or trial “regarding the effects of

Haldol, whether Defendant was taking Haldol or any other medication at the time of questioning,

or whether Defendant was mentally competent to waive his rights.” Id. at 708-709.

A suspect’s request for counsel can be waived after being invoked. “Where the

prosecution shows that a Miranda warning was given and that it was understood by the accused,

an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”

Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). See also

Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citation

omitted) (“[I]f a suspect requests counsel at any time during the interview, he is not subject to

further questioning until a lawyer has been made available or the suspect himself reinitiates

(Under Miranda, interrogation must cease after an invocation of such rights “unless the accused

himself initiates further communication, exchanges, or conversations with the police.”).

Here, while Petitioner admittedly invoked his rights to remain silent and to counsel, he

then waived those rights by initiating further discussion with Detective Sailor. Petitioner

proceeded to make multiple statements, without expressing any further desire to discontinue the

questioning or invoke his right to counsel. Under these circumstances, this Court finds the

Missouri Court of Appeals reasonably determined that Petitioner knowingly and voluntarily

waived his rights by initiating further conversation. See Prentiss v. Ault, 352 Fed. App’x 141,

142 (8th Cir. 2009) (per curiam) (To be valid, a waiver of rights under Miranda must be

voluntary, knowing, and intelligent.); North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct.

1755, 60 L.Ed.2d 286 (1979) (holding Miranda rights can be impliedly waived). The finding is

entitled to deference, as the Missouri Court of Appeals correctly applied the holdings of Miranda

and its progeny, and further reached factual determinations that were not unreasonable in light of

the evidence presented. Ground 2 of Petitioner’s § 2254 petition must therefore be denied.

III. Ground 3

In Ground 3 of his petition Petitioner asserts he received ineffective assistance of counsel,

in that trial counsel failed properly to object to an improper statement from the prosecutor during

the State’s rebuttal closing argument. (§ 2254 Petition, PP. 21-23). Specifically, Petitioner

complains that during her rebuttal closing argument, the prosecutor asked jurors to imagine what

it was like for the murder victim in the last moments of her life. Petitioner raised this claim

before the 29.15 post-conviction motion court, and the court denied the claim as follows:

FINDINGS OF FACT

hearing. Mr. Morris said he had not been made aware of the post-conviction

relief proceeding until the morning of the hearing.

13. Mr. Morris said he was involved in the defense from the very beginning

and he had been present at all court proceedings. He and Mr. Kessler worked

together on the case….

19. Mr. Morris was asked why he did not object to statements by the

prosecuting attorney during closing argument that movant4 characterizes as

“personalizing.” Mr. Morris said he did not believe the statements were

improper, in that the prosecutor did not ask the jurors to put themselves in the

position of the victims.

CONCLUSIONS OF LAW

3. Movant claims counsel was ineffective for failing to object when the

prosecuting attorney asked the jury to imagine what it was like for Yasmin

Rodriguez in the last moments of her life. Movant claims the statement

constituted improper personalization.

It is generally improper for a prosecutor to personalize his closing

argument, which occurs where the prosecutor suggests personal danger to the

jurors or their families if the defendant were to be acquitted, Jones v. State, 389

S.W.3d 253, 257 (Mo.App.E.D. 2012); State v. Basile, 942 S.W.2d 342 (Mo.banc

1997); State v. Phillips, 940 S.W.2d 512 (Mo.banc 1997), or when the prosecutor

asks the jurors to place themselves in the shoes of the victim. Hall v. State, 16

S.W.3d 582, 585 (Mo.banc 2000).

Failure to object during closing argument is more likely a function of trial

strategy than of error. State v. Carson, 883 S.W.2d 534, 536 (Mo.App.E.D.

1994); State v. Boyd, 844 S.W.2d 524, 529 (Mo.App. 1992). Movant must show

that an objection would have been meritorious and that the failure to object

resulted in a substantial deprivation of the right to a fair trial. Ruff v. State, 815

S.W.2d 460, 465 (Mo.App. 1991).

The Court finds that this claim is without merit because the statement

asked the jurors to imagine what it was like for the victim but did not ask them to

imagine themselves being the victim. In addition, in context the statement was

not prejudicial. Mr. Byrd was charged with first degree murder for the death of

Ms. Rodriguez, but the jury found him guilty of the lesser charge of second

degree murder.

3 Attorneys Raphael Morris, Brad Kessler, and Nicholas Williams represented Plaintiff during

his trial. (See Resp. Exh. F, P. 2).

4 Petitioner is referred to as “Movant” by the post-conviction motion court.

29.15 motion, and the Missouri Court of Appeals denied the claim as follows:

To prove ineffective assistance of counsel, one must demonstrate that

counsel failed to exercise the customary skill and diligence of a reasonably

competent attorney under similar circumstances, and that movant was thereby

prejudiced. Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005) (citing

Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To satisfy the first

prong of this test, a movant must “overcome a strong presumption that counsel

provided competent representation by showing ‘that counsel’s representation fell

below an objective standard of reasonableness.’” Id. (quoting Deck v. State, 68

S.W.3d 418, 425 (Mo. banc 2002)). To satisfy the second prong, a movant must

show that, had counsel not erred, there is a reasonable probability that the result of

the proceeding would have been different. Id. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. This Court

does not need to address both components of the inquiry if the Movant makes an

insufficient showing on one. Strickland, 466 U.S. at 697; Sidebottom v. State,

781 S.W.2d 791, 796 (Mo. banc 1989)….

Movant claims that trial counsel was ineffective for failing to object to an

improper personalization during the State’s rebuttal closing argument. Movant

refers to the following excerpt of the State’s closing argument:

Now imagine Yasmin. Yasmin who doesn’t swim. She’s at the

river, she thinks she’s just there to talk. The next thing she

knows, she’s in the water. And she’s just not in the water, she’s

under the water. She’s struggling. She can’t get up. She can’t

breathe. And just at the moment, when she is overwhelmed by the

knowledge that she’s going to die, she thinks about her son, who

she can’t save, and knows that he’s facing the exact same fate that

she is.

To establish a claim of ineffective assistance of counsel for failure to

object, a movant must show that the failure to object 1) was not a matter of trial

strategy and 2) was prejudicial. Barton v. State, 432 S.W.3d 741, 754 (Mo.

2014). Counsel is not ineffective for failing to make non-meritorious objections.

Id.

In general, a prosecutor may not personalize argument to the jury. Gibbs

v. State, 359 S.W.3d 529, 536 (Mo. App. E.D. 2012). This rule serves to avoid

inciting passion or fear that might taint the jury’s judgment. Id. Missouri courts

have routinely held that improper personalization results when the prosecutor asks

the jurors to place themselves or some other identifiable person in the shoes of the

victim or at the crime scene. Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000).

Another oft-cited rule regarding improper personalization in Missouri is that an

their families. State v. Rhodes, 988 S.W.2d 521, 528 (Mo. banc 1999).

The State claims that an objection to the prosecutor’s closing argument

would have been non-meritorious because the prosecutor “referenced the

experience of the Victim in the third person and did not ask the jurors to place

themselves in her position.” Here, the State appears to fine-tune a distinction

without a difference. “Imagine” is the operative word here. An invitation to

“imagine” a victim’s last moments is, in our view, a shorthand way of

personalizing the argument.

Nevertheless, we need not rule on the propriety of the prosecutor’s

statement because Movant fails to show prejudice resulting from trial counsel’s

failure to object. Where there is overwhelming evidence of guilt, such that it

cannot be reasonably said that, but for the challenged actions of trial counsel, the

jury would have found the movant not guilty, the movant suffers no prejudice.

McCoy v. State, 431 S.W.3d 517, 522 (Mo. App. E.D. 2014). Here, the jury

heard evidence of Movant’s statements in which he confessed to pushing Yasmin

into the Mississippi River and watching as she drowned. In addition to Movant’s

confession, the State produced evidence that Movant had previously been arrested

for assaulting Yasmin Rodriguez, that he had disposed of Yasmin and Gebar Jr.’s

belongings, and that he told a witness that he knew where Yasmin and Gebar Jr.

were but would not be able to get to them or see them. Given this overwhelming

evidence of guilt, Movant fails to prove that the jury would have found him not

guilty had his trial counsel objected to the prosecutor’s rebuttal closing argument.

Therefore, trial counsel’s failure to object was not prejudicial. Accordingly,

Point I is denied.

(Resp. Exh. J, PP. 4, 5-6).

Under federal law, in order to prevail on his ineffective assistance of counsel claim,

Petitioner must show that his attorney’s performance was “deficient,” and that the deficient

performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional judgment.” Id. at

690. To overcome this presumption, Petitioner must prove that, “in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.” Id.

Even if Petitioner satisfies the performance component of the analysis, he is not entitled

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

Upon consideration the Court finds that with the claim, Petitioner fails to demonstrate the

requisite prejudice. The Eighth Circuit has held that, “[t]o establish ineffective assistance of

counsel for failing to object to a prosecutor’s closing argument, [a habeas petitioner] must

demonstrate, as in every ineffective assistance claim, not only that counsel’s performance was

deficient, but also that there is a reasonable probability that, but for counsel’s failure to object,

the result of the proceeding would have been different.” Middleton v. Roper, 455 F.3d 838, 849

(8th Cir. 2006) (internal quotation marks and citation omitted). Furthermore, the Eighth Circuit

has held that a habeas petitioner claiming he was denied due process as a result of the

prosecutor’s remarks must show the remarks were so egregious that they fatally infected the

proceedings and rendered the petitioner’s entire trial fundamentally unfair. See Culkin v.

Purkett, 45 F.3d 1229, 1235 (8th Cir. 1995). A petitioner meets this burden only by showing

that absent the prosecutor’s statement, there is a reasonable probability that the jury would have

rendered a different verdict. Crespo v. Armontrout, 818 F.2d 684, 687 (8th Cir. 1987).

Here, the Missouri Court of Appeals found that Petitioner failed to show prejudice

resulting from his trial counsel’s failure to object. This Court agrees with the Missouri court

that in light of the significant evidence of Petitioner’s guilt, including Petitioner’s own

statements and his previous arrest for assaulting one of the victims, there exists no reasonable

probability that but for trial counsel’s alleged error the outcome of Petitioner’s trial would have

been different. Accordingly, Ground 3 is denied.

IV. Ground 4

assistance of counsel, in that trial counsel failed to present a diminished capacity defense. (§

2254 Petition, PP. 23-24). Petitioner raised this claim before the 29.15 post-conviction motion

court, and the court denied the claim as follows:

FINDINGS OF FACT

6. Mr. Kessler advised the Court that a psychiatric examination had been

performed. Mr. Kessler said it came back negative as to the murder and child

endangerment counts but there was a possible defense for the domestic violence

count. Mr. Kessler said the defense had decided, as a matter of trial strategy and

not accidentally, not to pursue the defense because juries sometimes think, “if

he’s crazy we don’t want to let him go” and the jury may believe he’s getting out

right away. Mr. Kessler further stated that “it’s not our defense that he had

diminished capacity. It’s not our defense that he suffered from a mental disease

or defect.”….

18. Mr. Morris said [during the evidentiary hearing] he discussed the

possibility of an NGRI5 defense, but he relied on Mr. Kessler’s expertise in the

area….

CONCLUSIONS OF LAW

4. Movant claims defense counsel was ineffective for failing to present a

diminished capacity defense at his trial. Prior to trial the Court ordered a

psychiatric evaluation of Mr. Byrd. It is clear from the trial record that the

decision not to offer the defense was a reasonable strategic decision. This claim

is without merit.

(Resp. Exh. F, PP. 2-3, 6, 10). Movant advanced the claim on appeal from the denial of his

29.15 motion, and the Missouri Court of Appeals denied the claim as follows:

For his third point, Movant contends that trial counsel was ineffective for

failing to present a diminished capacity defense at trial. The motion court found

that trial counsel was not ineffective because the “decision not to offer the defense

[of diminished capacity] was a reasonable strategic decision.” In its factual

findings, the motion court noted that the trial court ordered a psychiatric

evaluation of Movant prior to trial, and cited Kessler’s statements at trial in which

he explained that he would not be presenting a mental disease or defect defense,

along with his reasoning why.

5 “NGRI” refers to not guilty by reason of insanity.

clear from the record that the decision not to offer the defense of diminished

capacity was a reasonable decision.” Movant cites State v. Hamilton, 871

S.W.2d 31 (Mo. App. W.D. 1993) for the proposition that even a strategic

decision by counsel can warrant a finding of ineffective assistance if the strategy

is not reasonable. Id. This case is distinguishable from Hamilton in that the

record here reflects that Kessler’s strategic decision not to pursue a diminished

capacity defense was reasonable.

Movant claims that no reasonably competent attorney who knew about

Movant’s prior psychiatric hospital admission, history of taking (and ceasing to

take) an antipsychotic medication, and statements to the police that he might be

experiencing a psychotic episode, would have failed to present a diminished

capacity defense. In particular, Movant claims that trial counsel was ineffective

for failing to raise a diminished capacity defense on Count I, Yasmin’s murder,

and Count IV, the domestic assault arising from an incident prior to the

homicides.

Movant’s argument with respect to Count I has no merit. Although

Movant clearly had a history of psychiatric troubles, “the existence of a mental

disease or defect will not alone suffice to diminish the defendant’s criminal

responsibility.” State v. Knight, 355 S.W.3d 556, 559 (Mo. App. S.D. 2011).

“Rather, the existence of a mental disease or defect must be linked to the

existence of a required culpable mental state.” Id. Kessler stated on the trial

record that “[t]here was a [psychiatric examination] performed in this case. It

came back negative as to the two counts of murder and their lesser includeds

[sic]” and that the defense did not “have evidence” of mental disease or defect.

Trial counsel reasonably investigated possible mental state defenses through the

psychiatric examination, but the exam did not indicate a link between Movant’s

mental disease and his mental state at the time of Yasmin’s murder. Therefore, it

was certainly reasonable for Kessler not to raise a diminished capacity defense for

Count I.

As for Count IV, Kessler stated at trial that the psychiatric examination

“did come back as a possible defense on the domestic violence second degree.

We have opted not to pursue that. We had noticed up the State of it. We didn’t

accidentally abandon it.” Movant claims that the record does not support the

motion court’s finding that Kessler’s trial strategy was reasonable. Movant takes

issue with the motion court’s reliance on Kessler’s statements at trial and Morris’s

testimony at the evidentiary hearing, claiming this is “no substitute for trial

counsel Kessler’s testimony” at the evidentiary hearing. We disagree. After our

review of the entire record, including the trial transcript, we are not firmly

convinced that the motion court erred in finding that the decision not to pursue a

diminished capacity was reasonable trial strategy.

The question in an ineffective assistance claim is whether the decision

made was reasonable under all the circumstances, not whether counsel could have

(Mo. banc 2013). “A reasonable strategy, even if it looks imperfect in hindsight,

cannot provide the basis for an ineffective assistance of counsel claim.”

Worthington, 166 S.W.3d at 575. Decisions by counsel not to pursue a

diminished capacity defense are often reasonable. In Worthington, defense

counsel decided not to pursue a diminished capacity defense where the

psychiatrist’s report that supported the defense “was outweighed by the negative

effect it might have,” and defense counsel believed diminished capacity defenses

“did not go over well and were difficult to defend.” Id. at 574-5. Counsel’s

decision to not pursue a diminished capacity defense was held to be a reasonably

strategic choice, with the Court noting the “extensive experience” of defense

counsel. Id. In Johnson, a decision not to raise a diminished capacity defense

was found to be reasonably strategic when trial counsel was concerned that such a

defense would cause the jury to lose focus or become alienated. 406 S.W.3d at

900.

Here, Movant has not overcome the strong presumption that counsel

rendered adequate assistance, exercising reasonable professional judgment. At

trial, Kessler stated:

It has been my long and considered opinion, having done

this for almost thirty years, I have yet to see a jury acquit someone

on that basis, and it brings in all sorts of things that—as I’ve

spoken to jurors afterwards, their statements are, well, if he’s

crazy, we certainly don’t want to let him go. Because the way the

instruction now reads and has always read in Missouri is it’s not

guilty by reason of mental disease or defect, which the jury is

oftentimes led to believe means they’re getting out right away and

that they shouldn’t do that. So based on that, we have knowingly

and as a result of trial strategy decided not to assert mental disease

or defect as to…the domestic violence second degree.

At the evidentiary hearing, Morris testified that the defense’s focus was on

defending against the murder charges, as opposed to the domestic assault.

“Where counsel has investigated possible strategies, courts should rarely

second-guess counsel’s actual choices. Trial counsel is normally in the best

position to assess the tradeoffs involved in selecting particular defenses.”

Middleton v. State, 103 S.W.3d 726, 736 (Mo. banc 2003). Trial counsel did

investigate the possibility of using a defense based on mental disease or defect

with the pre-trial psychiatric examination, and reasonably assessed the merits and

disadvantages of such a defense. Here, like in Worthington, an experienced

defense attorney determined that a defense based on mental disease or defect

might not be well received by the jury. In addition, the defense was focused on

defending the murder charges, and therefore entering a psychiatric report which

showed a possible mental defect for the domestic assault but not the homicides

could have affected the jury’s ruling on the murder charges. In fact, the jury here

found for the lesser included offenses of second-degree murder and involuntary

err in finding that counsel was not ineffective.

Movant further claims that “but for trial counsel’s failure to present a

diminished capacity defense at trial, there is a reasonable probability that the

outcome of Mr. Byrd’s trial would have been different.” However, because

Movant has not shown that counsel’s performance fell below an objective

standard of reasonableness, we need not address the prejudice prong. Point III is

denied.

(Resp. Exh. J, PP. 8-11).

Upon consideration the Court finds that with this claim, Petitioner fails to demonstrate his

counsel’s conduct fell outside the wide range of professionally competent assistance. As noted

above, the record indicates trial counsel was aware of a potential diminished capacity defense,

and made a deliberate choice not to pursue this strategy. Counsel stated that a psychological

examination was performed in Petitioner’s case, and diminished capacity came back as a

possible defense only as to the domestic violence charge.6 (Resp. Exh. A, P. 399). Counsel

opted not to pursue the defense as to that charge, however, because in his experience jurors are

reticent to find defendants not guilty by reason of mental disease or defect for fear the offender

will immediately be released. (Id., PP. 399-400).7 Counsel continued to confirm that

Petitioner’s defense was not that he suffered from a mental disease or defect. (Id., P. 401).

“[S]trategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable[.]” McLaughlin v. Precythe, 9 F.4th 819, 827

(8th Cir. 2021) (internal quotation marks and citation omitted). See also United States v.

Unpradit, 35 F.4th 615, 632 (8th Cir. 2022) (same). This Court finds that the Missouri court’s

decision is neither contrary to nor an unreasonable application of clearly established federal law,

6 Counsel noted the exam came back negative as to the two counts of murder and their lesser

included offenses. (Resp. Exh. A, P. 399).

7 Counsel stated that during his nearly thirty-year career, he had never seen a jury acquit a

defendant on that basis. (Resp. Exh. A, P. 400).

assistance. Ground 4 is denied.8

V. Ground 5

As stated above, in Ground 5 of his petition Petitioner asserts that the post-conviction

motion court erred in setting an evidentiary hearing with only nine days’ notice, thereby

constructively denying Petitioner the opportunity to have trial counsel testify on his behalf. (§

2254 Petition, PP. 24-27). Federal habeas relief is available to a state prisoner only on the

ground that he is in custody in violation of a constitutional or federal statutory right.

Williams-Bey v. Trickey, 894 F.2d 314, 317 (8th Cir.), cert. denied, 495 U.S. 936 (1990); 28

U.S.C. § 2254(a). Claims that do not reach constitutional magnitude cannot be addressed in a

petition for habeas corpus. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991).

“Section 2254 only authorizes federal courts to review the constitutionality of a state

criminal conviction, not infirmities in a state post-conviction relief proceeding.” Williams-Bey,

894 F.2d at 317 (citation omitted). See also Williams v. State of Missouri, 640 F.2d 140, 143-44

(8th Cir.), cert. denied, 451 U.S. 990 (1981). Petitioner’s claim that the post-conviction motion

court improperly set an evidentiary hearing with only nine days’ notice is collateral to his

conviction and detention, and therefore is not cognizable in this federal habeas petition.

Williams-Bey, 894 F.2d at 317. Ground 5 is denied.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Petitioner’s Petition under 28 U.S.C. § 2254 for Writ

of Habeas Corpus by a Person in State Custody (ECF No. 1) is DENIED, and his claims are

8 In light of the above ruling, the Court need not consider whether Petitioner establishes the

requisite prejudice.

DISMISSED with prejudice. A separate Order of Dismissal will accompany this Memorandum

and Order.

IT IS FURTHER ORDERED that because Petitioner cannot make a substantial

showing of the denial of a constitutional right, the Court will not issue a certificate of

appealability. See Cox v. Norris, 133 F.3d 565, 569 (8" Cir. 1997), cert. denied, 525 U.S. 834

(1998).

Dated this 27th day of September, 2023.

dayevielt

UNITED STATES MAGISTRATE JUDGE

~23-