# Byrd v. Buckner

> District Court, E.D. Missouri · September 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10239363

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10239363

## How later opinions describe it (automated extraction)

- holding Miranda rights can be impliedly waived

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239363. Public record. Not legal advice.