Roderick Byrd v. State of Alabama - Affirmation of Convictions and Sentences
Summary
The Alabama Court of Criminal Appeals affirmed Roderick Byrd's convictions for capital murder and his resulting death sentences. The court considered multiple arguments, including claims of intellectual disability, ineffective assistance of counsel, and procedural errors.
What changed
The Alabama Court of Criminal Appeals has affirmed the convictions and death sentences of Roderick Byrd, who was convicted of four counts of capital murder in 2007. The appellate court addressed Byrd's arguments challenging the dismissal of his post-conviction relief petition, including claims that he is intellectually disabled and therefore ineligible for the death penalty, and various assertions of ineffective assistance of trial counsel regarding jury selection, plea negotiations, guilt phase, and penalty phase proceedings.
The court's decision means that Byrd's convictions and sentences stand. The ruling implies that the arguments presented by Byrd were found insufficient to warrant relief. For legal professionals and compliance officers involved in criminal justice, this case underscores the rigorous standards for post-conviction relief and the high burden of proof required to demonstrate ineffective assistance of counsel or ineligibility for the death penalty based on intellectual disability.
Penalties
Death sentences
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March 27, 2026 Get Citation Alerts Download PDF Add Note
Roderick Byrd v. State of Alabama
Court of Criminal Appeals of Alabama
- Citations: None known
- Docket Number: CR-2023-0545
Judges: Judge Minor
Combined Opinion
Rel: March 27, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals
OCTOBER TERM, 2025-2026
_________________________
CR-2023-0545
_________________________
Roderick Byrd
v.
State of Alabama
Appeal from Jefferson Circuit Court
(CC-06-2222.60)
MINOR, Judge.
In this appeal we consider whether the Jefferson Circuit Court
erred in summarily dismissing Roderick Byrd's petition for relief under
Rule 32, Ala. R. Crim. P., in which he challenged his 2007 convictions for
four counts of capital murder and his resulting death sentences. On
appeal, Byrd argues: (1) that his petition was timely filed; (2) that he is
CR-2023-0545
intellectually disabled and thus ineligible for the death penalty and that
his trial counsel were ineffective in developing and presenting evidence
to show that he is intellectually disabled; (3) that he was constructively
denied counsel; (4) that his trial counsel were ineffective during jury
selection; (5) that his trial counsel were ineffective in negotiating a plea;
(6) that his trial counsel were ineffective during the guilt phase; and (7)
that his trial counsel were ineffective during the penalty phase and at
the sentencing hearing before the trial court. For the reasons below, we
affirm.
FACTS AND PROCEDURAL HISTORY
On direct appeal in 2009, this Court summarized the relevant facts
and procedural history of the proceedings leading to Byrd's convictions
and death sentences:
"On November 24, 2005, Thanksgiving Day, Brandon
Mitchell went to Byrd's sister, Hellena Byrd's apartment in
Birmingham, Alabama, where Roderick Byrd and Jonathan
Floyd also lived. Mitchell woke Byrd and enlisted Byrd's and
Floyd's aid in his plan to commit a robbery at the Airport Inn
(hereinafter 'the Inn'). After agreeing to help Mitchell commit
the robbery, Byrd returned to his bedroom and put on a black
shirt, black pants, and black shoes. Shortly thereafter, Floyd
drove Mitchell and Byrd to the Inn in Floyd's automobile.
"According to Byrd's statement, while they were in the
parking lot of the Inn, Mitchell, Floyd, and Byrd discussed the
2
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robbery. At some point before entering the Inn, Byrd put on a
pair of black gloves to prevent leaving physical evidence of his
participation in the crime; however, neither he nor Mitchell,
who had previously been employed at the Inn, made any
attempt to conceal their facial identities.1 Thereafter, Mitchell
and Byrd entered the Inn—each armed with one pistol—and
encountered Kim Olney, the desk clerk, and John Aylesworth,
a truck driver, who was waiting in the lobby for a ride to
Texas.
"Once in the Inn, Mitchell focused his attention on Olney
while Byrd used his pistol to subdue Aylesworth, a former
Marine. At some point during the robbery, Dorothy Smith, a
traveler from New York who was in Alabama visiting family
for Thanksgiving, entered the lobby of the Inn to rent a room
for the night. After she entered the lobby, Smith, like Olney
and Aylesworth, was held at gunpoint. During this time,
Mitchell took approximately $300 from a cash drawer that
was located behind the clerk's desk and also tried
unsuccessfully to open a safe. Mitchell and Byrd also took
various items from the three victims, including a tote bag, a
duffel bag, clothes, and money. During these events, Olney,
Aylesworth, and Smith were each shot behind the ear at close
range with .38 caliber pistols.2 Olney was also shot in the arm.
All three victims died as result of a gunshot wound to the
head. Forensic testing of the projectiles recovered from the
crime scene and the victims' bodies established that Olney
and Smith were shot with the same .38 caliber pistol and that
Aylesworth was shot with a different .38 caliber pistol.
"After the robbery, Mitchell and Byrd left the Inn on
foot. They traveled around to the back of the Inn and climbed
a fence that separated the Inn from a neighborhood. Clifford
Davis and James Jackson, who lived in one of the houses
behind the Inn, saw two men, carrying various items, climb
the fence and enter the neighborhood. Although Davis and
Jackson could not make a positive identification, they testified
that one of the two men they saw climb the fence was wearing
3
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all black, including black shoes. Davis and Jackson testified
that after the two men climbed the fence and entered the
neighborhood, they went in different directions.
"Shortly after Mitchell and Byrd separated, Mitchell
telephoned Floyd and asked Floyd to come pick him up. Floyd
found Mitchell near First Avenue in Birmingham and drove
Mitchell to Fifth Avenue South. Floyd dropped Mitchell off on
Fifth Avenue and then drove around looking for Byrd. After
unsuccessfully searching for Byrd, Floyd returned to Hellena
Byrd's apartment where he found Byrd crying and shaking.
At that point, Byrd made a statement to Floyd indicating that
Mitchell shot all three people at the Inn.
"Floyd and Byrd remained at the apartment for
approximately 30 minutes. Then they, along with Hellena
Byrd and Byrd's girlfriend, Lasundra Mosley, went to Byrd's
grandmother's house, where they ate Thanksgiving dinner.
"At some point after Thanksgiving, Byrd went to
Georgia where he was apprehended. While in Georgia at the
Henry County jail, Byrd gave a statement to two Birmingham
police officers in which he confessed to participating in the
robbery, but denied any involvement in the murders.
"_______________
"1The video of the crime recorded by a security camera
shows that Mitchell had a knit cap or ski mask on his head;
however, the cap was not covering his face, and he eventually
removed it from his head.
"2The security video from the lobby of the Inn shows
Mitchell shooting Olney."
Byrd v. State, 78 So. 3d 445, 448-49 (Ala. Crim. App. 2009).
At the penalty phase, the jury recommended, by an 11-1 vote, that
4
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Byrd receive a death sentence for counts 1, 2, and 4. As to count 3, the
jury recommended a death sentence by a 10-2 vote. The trial court
followed the jury's recommendation and sentenced Byrd to death on all
four counts.
This Court affirmed Byrd's convictions and death sentences. Byrd,
78 So. 3d 445. The Alabama Supreme Court denied Byrd's petition for
the writ of certiorari. Ex parte Byrd (No. 1081250, Aug. 19, 2011), cert.
denied, Byrd v. Alabama, 565 U.S. 1205 (2012). This Court issued a
certificate of judgment on August 19, 2011, making Byrd's convictions
and sentences final.
In August 2012, Byrd, through counsel, timely filed a postconviction
petition under Rule 32, Ala. R. Crim. P., challenging his convictions and
sentences. (Supp. C. 318.) Over the next decade, the case was reassigned
to different judges. Byrd amended his petition four times, and the State
moved to dismiss each amended petition.
In June 2023, the circuit court summarily dismissed the petition.
(C. 77.) Byrd moved for reconsideration and timely appealed.1 (C. 95,
1The circuit court did not rule on the motion for reconsideration
before it lost jurisdiction to modify its judgment dismissing the petition.
5
CR-2023-0545
928.)
STANDARD OF REVIEW
" '[Byrd] has the burden of pleading and
proving his claims. As Rule 32.3, Ala. R. Crim. P.,
provides:
" ' "The petitioner shall have the burden
of pleading and proving by a
preponderance of the evidence the facts
necessary to entitle the petitioner to
relief. The state shall have the burden
of pleading any ground of preclusion,
but once a ground of preclusion has
been pleaded, the petitioner shall have
the burden of disproving its existence
by a preponderance of the evidence."
" ' "The standard of review this Court uses in
evaluating the rulings made by the trial court [in
a postconviction proceeding] is whether the trial
court abused its discretion." Hunt v. State, 940 So.
2d 1041, 1049 (Ala. Crim. App. 2005). However,
"when the facts are undisputed and an appellate
court is presented with pure questions of law, [our]
review in a Rule 32 proceeding is de novo." Ex
parte White, 792 So. 2d 1097, 1098 (Ala. 2001).
"[W]e may affirm a circuit court's ruling on a
postconviction petition if it is correct for any
reason." Smith v. State, [122] So. 3d [224], [227]
(Ala. Crim. App. 2011).
" '… [Some] of the claims raised by [Byrd]
Thus, the motion was denied by operation of law. Matthews v. State, 363
So. 3d 1028, 1031 (Ala. Crim. App. 2021).
6
CR-2023-0545
were summarily dismissed based on defects in the
pleadings …. When discussing the pleading
requirements for postconviction petitions, we have
stated:
" ' "The burden of pleading under
Rule 32.3 and Rule 32.6(b) is a heavy
one. Conclusions unsupported by
specific facts will not satisfy the
requirements of Rule 32.3 and Rule
32.6(b). The full factual basis for the
claim must be included in the petition
itself. If, assuming every factual
allegation in a Rule 32 petition to be
true, a court cannot determine whether
the petitioner is entitled to relief, the
petitioner has not satisfied the burden
of pleading under Rule 32.3 and Rule
32.6(b). See Bracknell v. State, 883 So.
2d 724 (Ala. Crim. App. 2003)."
" 'Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim.
App. 2006) [(emphasis removed)].
" ' " 'Rule 32.6(b) requires that the
petition itself disclose the facts relied
upon in seeking relief.' Boyd v. State,
746 So. 2d 364, 406 (Ala. Crim. App.
1999). In other words, it is not the
pleading of a conclusion 'which, if true,
entitle[s] the petitioner to relief.'
Lancaster v. State, 638 So. 2d 1370,
1373 (Ala. Crim. App. 1993)[, overruled
on other grounds by Robey v. State, 950
So. 2d 1235 (Ala. Crim. App. 2006)]. It
is the allegation of facts in pleading
which, if true, entitle a petitioner to
relief. After facts are pleaded, which, if
7
CR-2023-0545
true, entitle the petitioner to relief, the
petitioner is then entitled to an
opportunity, as provided in Rule 32.9,
Ala. R. Crim. P., to present evidence
proving those alleged facts."
" 'Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim.
App. 2003) [(emphasis removed)]. "[T]he
procedural bars of Rule 32[.2, Ala. R. Crim. P.,]
apply with equal force to all cases, including those
in which the death penalty has been imposed."
Burgess v. State, 962 So. 2d 272, 277 (Ala. Crim.
App. 2005).
" 'Some of [Byrd's] claims were also dismissed
based on his failure to comply with Rule 32.7(d),
Ala. R. Crim. P. In discussing the application of
this rule we have stated:
" ' "[A] circuit court may, in some
circumstances, summarily dismiss a
postconviction petition based on the
merits of the claims raised therein.
Rule 32.7(d), Ala. R. Crim. P., provides:
" ' " 'If the court
determines that the petition
is not sufficiently specific,
or is precluded, or fails to
state a claim, or that no
material issue of fact or law
exists which would entitle
the petitioner to relief
under this rule and that no
purpose would be served by
any further proceedings,
the court may either
dismiss the petition or
8
CR-2023-0545
grant leave to file an
amended petition. Leave to
amend shall be freely
granted. Otherwise, the
court shall direct that the
proceedings continue and
set a date for hearing.'
" ' " ' "Where a simple reading of the
petition for post-conviction relief shows
that, assuming every allegation of the
petition to be true, it is obviously
without merit or is precluded, the
circuit court [may] summarily dismiss
that petition." ' Bishop v. State, 608 So.
2d 345, 347-48 (Ala. 1992) (emphasis
added) (quoting Bishop v. State, 592
So. 2d 664, 667 (Ala. Crim. App. 1991)
(Bowen, J., dissenting)). See also
Hodges v. State, 147 So. 3d 916, 934
(Ala. Crim. App. 2007) (a
postconviction claim is 'due to be
summarily dismissed [when] it is
meritless on its face')[, rev'd on other
grounds, Ex parte Hodges, 147 So. 3d
973 (Ala. 2011)]."
" 'Bryant v. State, 181 So. 3d 1087, 1102 (Ala.
Crim. App. 2011).'
"Washington v. State, 95 So. 3d 26, 38-39 (Ala. Crim. App.
2012).
"….
"Finally, '[a]lthough on direct appeal we reviewed
[Byrd's] capital-murder conviction for plain error, the plain-
error standard of review does not apply when an appellate
9
CR-2023-0545
court is reviewing the denial of a postconviction petition
attacking a death sentence.'[2] James v. State, 61 So. 3d 357,
362 (Ala. Crim. App. 2010) (citing Ex parte Dobyne, 805 So.
2d 763 (Ala. 2001)). With these principles in mind, we review
the claims raised by [Byrd] on appeal."
Marshall v. State, 182 So. 3d 573, 580-82 (Ala. Crim. App. 2014).
ANALYSIS
Byrd argues that the circuit court erred in summarily dismissing
his petition. We address his arguments in turn.
I. TIMELINESS OF THE PETITION
The circuit court found that Byrd's petition was untimely filed
under Rule 32.2(c), Ala. R. Crim. P.3 As Byrd argues and as the State
concedes, this finding was erroneous—Byrd filed his petition within a
year of his conviction becoming final, and thus the petition was timely
2Effective January 12, 2023, Rule 45A, Ala. R. App. P., no longer
requires this Court to conduct plain-error review on direct appeal in cases
involving the death penalty.
3Rule 32.2(c), Ala. R. Crim. P., provides, in part:
"[T]he court shall not entertain any petition for relief from a
conviction or sentence on the grounds specified in Rule 32.1(a)
and (f), unless the petition is filed: (1) In the case of a
conviction appealed to the Court of Criminal Appeals, within
one (1) year after the issuance of the certificate of judgment
by the Court of Criminal Appeals under Rule 41, Ala. R. App.
P."
10
CR-2023-0545
filed.
Although the circuit court erred in finding that the petition was
untimely filed, that does not mean that Byrd is due relief. See Spain v.
State, 336 So. 3d 1167, 1171 (Ala. Crim. App. 2020) ("Under most
circumstances, 'we may affirm a ruling if it is correct for any reason.'
Bush v. State, 92 So. 3d 121, 134 (Ala. Crim. App. 2009)."). The circuit
court addressed each claim separately and summarily dismissed them for
reasons other than timeliness. We thus turn to Byrd's remaining
arguments on appeal.
II. CLAIMS BASED ON ATKINS V. VIRGINIA
In his fourth amended petition, Byrd asserted that he is
intellectually disabled and thus ineligible for the death penalty under
Atkins v. Virginia, 536 U.S. 304 (2002),4 and that his counsel were
4In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the United States
Supreme Court held:
"Construing and applying the Eighth Amendment in the light
of our 'evolving standards of decency,' we therefore conclude
that [the death penalty] is excessive and that the Constitution
'places a substantive restriction on the State's power to take
the life' of a mentally retarded offender. Ford [v. Wainwright],
477 U.S. [399,] 405 [(1986)]."
11
CR-2023-0545
ineffective in presenting his Atkins claim.
A. ATKINS CLAIM
In Claim I of his fourth amended petition, Byrd asserted that he is
intellectually disabled and thus ineligible for the death penalty under
Atkins. (C. 135-72.) As the circuit court found, this claim is precluded
under Rules 32.2(a)(2) and (4), Ala. R. Crim. P., because Byrd asserted at
trial and on direct appeal that he was ineligible for the death penalty
under Atkins. (C. 79.) See Byrd, 78 So. 3d at 449-52.
The circuit court did not err in summarily dismissing the claim as
precluded under Rules 32.2(a)(2) and (a)(4), and Byrd is due no relief on
this claim. See, e.g., Yeomans v. State, 195 So. 3d 1018, 1047-48 (Ala.
Crim. App. 2013) (affirming the circuit court's application of the
procedural bar in Rule 32.2(a)(4) to Yeomans's Atkins claim because the
issue had been raised on direct appeal).
B. CLAIM THAT BYRD'S COUNSEL WERE INEFFECTIVE IN
DEVELOPING AND PRESENTING HIS ATKINS CLAIM
In Claim II of his fourth amended petition, Byrd asserted that his
As this Court recognized in Reeves v. State, 226 So. 3d 711, 722 n.4 (Ala.
Crim. App. 2016), courts now follow the trend of using the term
"intellectually disabled" rather than the term "mentally retarded."
12
CR-2023-0545
counsel were ineffective in developing and presenting his Atkins claim.
(C. 173-94.) Byrd asserts on appeal that the circuit court's summary
dismissal of this claim was improper.
We use these principles in reviewing claims asserting ineffective
assistance of counsel:
" 'To prevail on a claim of ineffective
assistance of counsel, the petitioner must show (1)
that counsel's performance was deficient and (2)
that the petitioner was prejudiced by the deficient
performance. See Strickland v. Washington, 466
U.S. 668 (1984).
" ' "Judicial scrutiny of counsel's
performance must be highly
deferential. It is all too tempting for a
defendant to second-guess counsel's
assistance after conviction or adverse
sentence, and it is all too easy for a
court, examining counsel's defense
after it has proved unsuccessful, to
conclude that a particular act or
omission of counsel was unreasonable.
A fair assessment of attorney
performance requires that every effort
be made to eliminate the distorting
effects of hindsight, to reconstruct the
circumstances of counsel's challenged
conduct, and to evaluate the conduct
from counsel's perspective at the time.
Because of the difficulties inherent in
making the evaluation, a court must
indulge a strong presumption that
counsel's conduct falls within the wide
13
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range of reasonable professional
assistance; that is, the defendant must
overcome the presumption that, under
the circumstances, the challenged
action 'might be considered sound trial
strategy.' There are countless ways to
provide effective assistance in any
given case. Even the best criminal
defense attorneys would not defend a
particular client in the same way."
" 'Strickland, 466 U.S. at 689 [(citations omitted)].
" ' "[T]he purpose of ineffectiveness
review is not to grade counsel's
performance. See Strickland [v.
Washington], [466 U.S. 668,] 104 S. Ct.
[2052] at 2065 [(1984)]; see also White
v. Singletary, 972 F.2d 1218, 1221
(11th Cir. 1992) ('We are not interested
in grading lawyers' performances; we
are interested in whether the
adversarial process at trial, in fact,
worked adequately.'). We recognize
that '[r]epresentation is an art, and an
act or omission that is unprofessional
in one case may be sound or even
brilliant in another.' Strickland, 104 S.
Ct. at 2067. Different lawyers have
different gifts; this fact, as well as
differing circumstances from case to
case, means the range of what might be
a reasonable approach at trial must be
broad. To state the obvious: the trial
lawyers, in every case, could have done
something more or something
different. So, omissions are inevitable.
But, the issue is not what is possible or
14
CR-2023-0545
'what is prudent or appropriate, but
only what is constitutionally
compelled.' Burger v. Kemp, 483 U.S.
776, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d
638 (1987)."
" 'Chandler v. United States, 218 F.3d 1305, 1313-
14 (11th Cir. 2000) (footnotes omitted).
" 'An appellant is not entitled to "perfect
representation." Denton v. State, 945 S.W.2d 793,
796 (Tenn. Crim. App. 1996). "[I]n considering
claims of ineffective assistance of counsel, 'we
address not what is prudent or appropriate, but
only what is constitutionally compelled.' " Burger
v. Kemp, 483 U.S. 776, 794 (1987).'
"Yeomans v. State, 195 So. 3d 1018, 1025-26 (Ala. Crim. App.
2013). Additionally, ' "[w]hen courts are examining the
performance of an experienced trial counsel, the presumption
that his conduct was reasonable is even stronger." ' Ray v.
State, 80 So. 3d 965, 977 n.2 (Ala. Crim. App. 2011) (quoting
Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.
2000)).
"We also recognize that when reviewing claims of
ineffective assistance of counsel 'the performance and
prejudice components of the ineffectiveness inquiry are mixed
questions of law and fact.' Strickland v. Washington, 466 U.S.
668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)."
Marshall, 182 So. 3d at 582-83.
Attorneys Emory Anthony and Everett Wess represented Byrd at
15
CR-2023-0545
trial. (Trial R. 2.5) For context, we briefly state what the record shows
that counsel did to present Byrd's Atkins claim. See Young v. State, 407
So. 3d 1139, 1183-84 (Ala. Crim. App. 2023) (" ' "Although petitioner's
claim is that his trial counsel should have done something more, we first
look at what the lawyer did in fact." ' Ray v. State, 80 So. 3d 965, 979
(Ala. Crim. App. 2011), quoting Chandler v. United States, 218 F.3d
1305, 1320 (11th Cir. 2000).").
On June 15, 2007—the Friday before Byrd's trial was to begin on
Monday, June 18, 2007—counsel filed a "Motion Under the Eighth
Amendment and Atkins v. Virginia to Order an Evaluation and/or
Prevent the Imposition of the Death Penalty." (Trial C. 143.) In that
motion, counsel set forth the definition of "mental retardation" as stated
5"Trial C." refers to the clerk's record in Byrd's direct appeal from
his 2007 trial; "Trial R." refers to the reporter's transcript in the direct
appeal. See Rule 28(g), Ala. R. App. P. See also Hull v. State, 607 So. 2d
369, 371 n.1 (Ala. Crim. App. 1992) (noting that this Court may take
judicial notice of its own records).
On February 1, 2006, the Jefferson District Court appointed
attorney Fred Pickard to represent Byrd. (Trial C. 54.) Pickard withdrew
from representing Byrd on April 6, 2006. That same day, the district
court appointed Wess as counsel for Byrd, and the next day the court
appointed Anthony as cocounsel. (Trial C. 55-56.)
16
CR-2023-0545
in Atkins; asserted that Byrd "may meet this definition per his recently
obtained school records," which counsel had obtained the day before filing
the motion; asked the trial court to order that Byrd be evaluated; and
asked for a hearing at which Byrd could offer evidence, including
testimony from an expert. (Trial C. 143-44.) On the day the motion was
filed, the trial court granted $1,500 for counsel to hire an expert "to
evaluate [Byrd] to determine if he is mentally retarded and his IQ level."
(Trial C. 24.) Counsel hired Dr. Kimberley Ackerson, who reviewed
records counsel provided to her and who evaluated Byrd.
The trial court held a hearing on the motion on June 18, 2007,
before Byrd's trial began. Dr. Ackerson testified at that hearing.6 On
direct appeal, this Court summarized that hearing:
"The circuit court conducted a hearing on Byrd's motion to
remove death as a possible sentence due to mental retardation
(hereinafter 'Atkins motion' or 'Atkins hearing'). (R. 45-79.)
During the Atkins hearing, Byrd presented the testimony of
Dr. Kimberly Ackerson, a clinical psychologist with a
specialty in forensic psychology. He also admitted into
evidence his school records. Dr. Ackerson testified that she
reviewed Byrd's school records, which included, among other
things, a confidential psychological evaluation, a behavioral
assessment, and an intellectual assessment. Id. Dr. Ackerson
also testified that Byrd was given two IQ tests while he was
6Dr. Ackerson also testified during the penalty phase. (Trial R.
1086.)
17
CR-2023-0545
in school. When he was in the seventh grade, Byrd was
administered the Wechsler Intelligence Scale for Children,
and his score indicated that his full-scale IQ was 65. (R. 50.)
Dr. Ackerson appears to testify that she believed that a 95
percent 'confidence interval' regarding Byrd's seventh-grade
IQ score indicates that Byrd's IQ 'would fall somewhere
between 59 and 71.'3 (R. 51.) Thereafter, in the 11th grade
when he was 17 years old, Byrd was administered the
Wechsler Intelligence Scale for Adults, and his score indicated
that his full-scale IQ was 75. (R. 52-54.) According to Dr.
Ackerson, 'they referred to a 95 percent confidence interval'
and that Byrd's 'true IQ is felt to fall anywhere between 71
and 80.' (R. 53.)
"In preparation for Byrd's Atkins hearing, Dr. Ackerson
assessed Byrd's IQ using the Wechsler Adult Intelligence
Scale, Third Edition. Based on Byrd's performance on that
test, Dr. Ackerson testified that his full-scale IQ is 72 and that
based on a 95 percent confidence interval, his 'true IQ [is]
between 68 and 77.' (R. 55.) Dr. Ackerson also testified that
due to the circumstances at the time the test was
administered—Byrd was tired and was in jail awaiting a
capital-murder trial—she did not believe that he was able to
provide his 'best effort' or 'to perform optimally' during the IQ
examination. (R. 65-66.)
"_______________
"3The school report indicates that 'the probability is 90%
out of 100 that [Byrd's] true IQ score is between 59 and 71.' "
Byrd, 78 So. 3d at 451. The trial court denied Byrd's Atkins motion,
finding that Byrd had failed to show "significantly subaverage
intellectual functioning (i.e. an IQ of 70 or below)" or "significant or
substantial deficits in adaptive behavior." (Trial C. 25.)
18
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Addressing Byrd's Atkins claim on direct appeal, this Court stated:
"Byrd first argues that 'the trial court erred by denying
[his] motion to remove the death penalty from consideration
....' (Byrd's Brief at 30.) Specifically, Byrd contends that he is
mentally retarded; therefore, his sentence of death constitutes
cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution as interpreted
in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed.
2d 335 (2002).
"In Atkins, the United States Supreme Court held that
the execution of mentally retarded capital offenders violates
the Eighth Amendment's prohibition of cruel and unusual
punishment. Id. at 321. The Court, however, declined to
establish a national standard for determining whether a
capital offender is mentally retarded and, instead, left to the
states 'the task of developing appropriate ways to enforce the
constitutional restriction upon their execution of sentences.'
Id. at 317.
"The Alabama Legislature has not yet established a
method for determining whether a capital defendant is
mentally retarded and, thus, ineligible for a sentence of death.
'However, the Alabama Supreme Court, in Ex parte Perkins,
851 So. 2d 453 (Ala. 2002), adopted the most liberal definition
of mental retardation as defined by those states that have
legislation barring the execution of a mentally retarded
individual.' Smith v. State, 213 So. 3d 255, 266-67 (Ala. Crim.
App. 2009) (opinion on return to fourth remand)[, rev'd on
other grounds, 213 So. 3d 313 (Ala. 2010)]; see also Smith v.
State, 213 So. 3d 239, 248 (Ala. 2007) ('Until the legislature
defines mental retardation for purposes of applying Atkins,
this Court is obligated to continue to operate under the
criteria set forth in Ex parte Perkins.'). Pursuant to Ex parte
Perkins, 'to be considered mentally retarded, [a capital
defendant] must have significantly subaverage intellectual
functioning (an IQ of 70 or below), and significant or
19
CR-2023-0545
substantial deficits in adaptive behavior.' Ex parte Perkins,
851 So. 2d at 456; see also Atkins, 536 U.S. at 321 n.5.
Further, 'these [two deficits] must have manifested
themselves during the developmental period (i.e., before the
defendant reached age 18).' Ex parte Perkins, 851 So. 2d at
456; Brownlee v. Haley, 306 F.3d 1043, 1073 (11th Cir. 2002)
(recognizing that mental retardation generally requires a
showing of an IQ of 70 or below, significant limitations in
adaptive skills, and the manifestation of these two deficits
during the developmental years). 'Therefore, in order for an
offender to be considered mentally retarded in the Atkins
context, the offender must currently exhibit subaverage
intellectual functioning, currently exhibit deficits in adaptive
behavior, and these problems must have manifested
themselves before the age of 18.' Smith v. State, 213 So. 3d at
248; … cf. Ex parte Perkins, 851 So. 2d at 456 (holding that
Perkins was not mentally retarded because, among other
reasons, Perkins's full-score adult IQ was 76); Roper v.
Simmons, 543 U.S. 551, 578-79, 125 S. Ct. 1183, 161 L. Ed. 2d
1 (2005) (focusing on defendants' culpability 'when their
crimes were committed').
" 'In the context of an Atkins claim, the defendant has
the burden of proving by a preponderance of the evidence that
he or she is mentally retarded.' Smith v. State, 213 So. 3d at
252 …. ' "The question of [whether a capital defendant is
mentally retarded] is a factual one, and as such, it is the
function of the factfinder, not this Court, to determine the
weight that should be accorded to expert testimony of that
issue." ' Smith v. State, 213 So. 3d at 267 (quoting Atkins v.
Commonwealth, 266 Va. 73, 581 S.E.2d 514, 515 (2003)). As
the Alabama Supreme Court has explained, questions
regarding weight and credibility determinations are better
left to the circuit courts, 'which [have] the opportunity to
personally observe the witnesses and assess their credibility.'
Smith v. State, 213 So. 3d at 253 (quoting Smith v. State, 213
So. 3d 226, 239 (Ala. Crim. App. 2006) (Shaw, J., dissenting)
….
20
CR-2023-0545
" 'This court reviews the circuit court's findings of fact
for an abuse of discretion. Snowden v. State, 968 So. 2d 1004,
1012 (Ala. Crim. App. 2006). ' " 'A judge abuses his discretion
only when his decision is based on an erroneous conclusion of
law or where the record contains no evidence on which he
rationally could have based his decision.' " ' Hodges v. State,
926 So. 2d 1060, 1072 (Ala. Crim. App. 2005) (quoting State
v. Jude, 686 So. 2d 528, 530 (Ala. Crim. App. 1996) (quoting
Dowdy v. Gilbert Eng'g Co., 372 So. 2d 11, 12 (Ala. 1979)
(quoting Premium Service Corp. v. Sperry & Hutchinson, Co.,
511 F.2d 225 (9th Cir. 1975)))).
"Applying these principles, we conclude that the circuit
court correctly determined that Byrd is not mentally retarded
and, thus, eligible for a sentence of death. …
"After considering the evidence presented during the
Atkins hearing, the circuit court found that Byrd is not
mentally retarded and denied his motion. (C.R. 29.) The
circuit court grounded its findings 'upon the last two tests that
were conducted [indicating that Byrd's IQ was] 72 and 75' and
on the fact that Dr. Ackerson did not testify that Byrd is, in
fact, mentally retarded. (R. 79; C.R. 29.) The circuit court's
findings are supported by the record.
"Based on Dr. Ackerson's evaluation just prior to trial
that placed Byrd's IQ at 72, Byrd cannot establish the first
requirement under Ex parte Perkins, namely that he
'currently exhibit[s] subaverage intellectual functioning ....'
Smith v. State, 213 So. 3d at 248. During oral argument before
this court, Byrd argued that although Dr. Ackerson's testing
showed that he had an IQ score of 72, she also testified that
based on a '95 percent' confidence interval, Byrd's 'true IQ [is]
between 68 and 77.' (R. 55.) Byrd then urged this court to
presume that his true IQ falls at the low end of the confidence
interval—between 68 and 70—and to find that he meets the
first requirement under Ex parte Perkins.
21
CR-2023-0545
"There are two fatal flaws in Byrd's argument. First,
Byrd bears the burden of establishing by a preponderance of
the evidence that he meets the Alabama Supreme Court's
criteria for mental retardation. Smith v. State, 213 So. 3d at
252. By relying on the mere possibility that his true IQ falls
at the low end of the confidence interval or, as he described it,
the 'margin of error,' Byrd has not met his burden to establish
that it is more likely than not that his IQ is 70 or below.
Second, based on Dr. Ackerson's testimony that Byrd did not
perform optimally on the test she administered (R. 65-66), it
is possible that his true IQ is above rather than below 72. In
any event, this court rejects Byrd's request that we presume
that a capital defendant's IQ falls at the bottom range of the
confidence interval or 'margin of error' (Byrd's Brief at 30-38),
and we hold that Byrd did not establish that he currently
exhibits subaverage intellectual functioning.
"Additionally, after reviewing Byrd's two juvenile IQ
scores, their confidence intervals, Byrd's school records, and
Dr. Ackerson's testimony, we hold that Byrd failed to meet his
burden to prove by a preponderance of the evidence that
'subaverage intellectual functioning manifested itself during
the developmental period (i.e., before the defendant reached
age 18).' Ex parte Perkins, 851 So. 2d at 456. The only
evidence Byrd presented during the Atkins hearing that
related to his IQ during his developmental years were two IQ
scores he received during school evaluations. (R. 50-55; C.R.
365-83.) In the seventh grade, Byrd scored a full-scale IQ of
65, with a confidence interval indicating that Byrd's actual IQ
'would fall somewhere between 59 and 71.' (R. 50-54.) Then,
when he was 17, Byrd received a full-scale IQ score of 75, with
a confidence interval indicating that his actual IQ would fall
somewhere 'between 71 and 80.'4 (R. 53; C.R. 365-83.)
"Based, in part, on Byrd's full-scale IQ score of 75 at age
17, the circuit court found that Byrd had not met his burden
to establish that he is mentally retarded. (R. 75.) Cf. Jackson
22
CR-2023-0545
v. State, 589 So. 2d 781, 784 (Ala. Crim. App. 1991) (citing
Bradley v. State, 494 So. 2d 750, 760-61 (Ala. Cr. App. 1985)
('[A] trial court's ruling based upon conflicting evidence ... is
binding on this Court ....')). With nothing more than two
conflicting juvenile IQ scores, one of which has a confidence
interval that indicated that Byrd's true IQ would fall between
71 and 80, the circuit court correctly determined that Byrd
failed to meet his burden to establish that he is mentally
retarded, i.e., that 'subaverage intellectual functioning
manifested itself during the developmental period ....' Ex
parte Perkins, 851 So. 2d at 456. Consequently, Byrd has not
established that the circuit court abused its discretion by
denying his Atkins motion.
"For the foregoing reasons, this court holds that Byrd
has not established the first and third requirements under Ex
parte Perkins; therefore, the circuit court properly
determined that Byrd is not mentally retarded. Consequently,
Byrd's execution does not offend the Eighth Amendment. See
Atkins, 536 U.S. 304.
"_______________
"4While Byrd's 11th grade school records indicate that
he had 'deficits hinder[ing his academic] success,' this court
notes that mental retardation was ruled out as a primary
cause of his academic impairment. (C.R. 377.)"
Byrd, 78 So. 3d at 449-52.
In denying Byrd's claim that his counsel were ineffective, the circuit
court found:
"In Claim II, [Byrd] claims that he was denied effective
assistance of counsel with respect to his Atkins motion during
the pretrial, trial, and sentencing phases of his case. Further,
[Byrd] alleges that by failing to investigate his possible
23
CR-2023-0545
intellectual disability and to present in full the available
evidence of such disability, trial counsel failed to meet
reasonable professional standards and that but for their
ineffectiveness, he would have been found to be intellectually
disabled and ineligible for the death penalty. [Byrd] contends
in Claim IX that trial counsel's failures extend to his
sentencing which is addressed in greater detail later in this
order, given that they had an opportunity to develop and
present additional evidence of intellectual disability between
the close of trial and sentencing.
"[Byrd] highlights trial counsel's failure to obtain
educational records, hire an investigator or psychologist, or
present available testimony from family, friends, teachers,
and experts as reasons why he was prejudiced during trial.
[Byrd] asserts that trial counsel failed to meet reasonable
standards of professional performance in offering evidence of
[Byrd's] significant subaverage intellectual functioning.
[Byrd] contends that evidence of his intellectual functioning
was not adequately developed or presented, and evidence of
his adaptive functioning deficits was not presented at all.
"[Byrd] discusses at great length the SEM and Flynn
Effect tests and how [they] could and should have been used
to determine that he was intellectually disabled. [Byrd]
offered that Dr. Joel Schneider, Ph.D., who was available at
the time of trial, would have testified as to the significance of
[Byrd's] scores. Dr. Schneider concluded that [Byrd's]
composite IQ scores of 67 (Flynn-adjusted) and 70 (non-Flynn-
adjusted) establish a higher degree of confidence that [Byrd]
is in the intellectual disability range over any of the individual
scores presented. Furthermore, [Byrd] argues that Dr. Daniel
Reschly, Ph.D., a school psychologist and expert in mild
intellectual disability, was also available at the time of trial.
Dr. Reschly would have testified that the SEM and the Flynn
Effect were essential to interpreting [Byrd's] IQ scores and
that, in his opinion, [Byrd] is intellectually disabled.
24
CR-2023-0545
"The State counters that [Byrd] does not contend that
the IQ scores reviewed by this court were incorrect and has
not alleged any new facts regarding his IQ scores that, if
proven, would show that the results of his trial would have
been different. Instead, [Byrd] offers possibilities of what the
IQ scores could be using the Fl[ynn] Effect. Both this court
and the Alabama Court of Criminal Appeals considered the
standard error of measurement testified to by Dr. Ackerson.
To the extent that [Byrd] now relies upon the 'Flynn Effect,'
no legal or scientific authority requires the application of this
theory and [Byrd's] allegations, if proven, fail to establish
either deficient performance or prejudice. Dunn v. Reeves,
[594 U.S. 31,] 210 L. Ed. 2d 812, 141 S. Ct 2405, 2408 (2021);
see also Smith v. State, 112 So. 3d 1108, 1132 (Ala. Crim. App.
2012); Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010)
('[N]o medical association recognizes [the Flynn Effect's]
validity.').
"The State contends and this court agrees that trial
counsel did present evidence concerning [Byrd's] low
intellectual functioning and ADHD. Although [Byrd] claims
'his trial counsel should have done something more, we [must]
first look at what the lawyer[s] did in fact.' Reeves v. State,
226 So. 3d 711, 752 (Ala. Crim App. 2016) (internal citations
and emphasis omitted). Dr. Ackerson testified that [Byrd] had
a low IQ. She testified that, considering the standard margin
of error, his true IQ score could be as low as 68 or as high as
77. [Byrd] has failed to show how his trial counsel was
ineffective when testimony regarding his low IQ was solicited
from Dr. Ackerson by his trial counsel but simply [was]
rejected by the court. As such, an appellant cannot relitigate
an issue under the guise of ineffective assistance of counsel.
Hunt v. State, 940 So. 2d 1041, 1051-52 (Ala. Crim. App.
2005).
"The State points out that after considering the evidence
presented at trial, this court determined that [Byrd] is not
intellectually disabled. The Alabama Court of Criminal
25
CR-2023-0545
Appeals reviewed [Byrd's] intellectual disability claim and
affirmed this court's finding. See Byrd, 78 So. 3d [445,] 451
([Ala. Crim. App.] 2012). As the Alabama Court of Criminal
Appeals observed, '[w]hile [Byrd's] 11th grade school records
indicate that he had "deficits hinder[ing his academic]
success," this court notes that mental retardation was ruled
out as a primary cause of his academic impairment.' Byrd, 78
So. 3d at 458, fn.4 ….
"This court notes that, although [Byrd] is not
intellectually disabled, his low IQ was found by this court to
be a non-statutory mitigating circumstance. Therefore,
[Byrd's] low IQ was weighed in [Byrd's] favor in this court's
decision to sentence him to death. Further, to the extent that
[Byrd] alleges that counsel failed to present evidence of
adaptive deficits, because significantly subaverage
intellectual functioning as measured by intelligence testing is
a required component of a meritorious Atkins claim, [Byrd]
cannot show deficient performance or prejudice merely by
showing that trial counsel failed to present evidence of
adaptive deficits. Because [Byrd] is not intellectually
disabled, trial counsel could not have raised a meritorious
Atkins claim. It is well-established that trial counsel cannot
be ineffective for failure to raise a meritless claim. Magwood
v. State, 689 So. 2d 959, 979-81 (Ala. Crim. App. 1996).
"[Byrd] not only failed to plead deficit performance in
this claim, but he also failed to plead prejudice. 'A bare
allegation that prejudice occurred without specific facts
indicating how the petitioner was prejudiced is not sufficient.'
Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006);
Rule 32.6(b), Ala. R. Crim. P.; Woods v. State, 221 So. 3d 1125,
1137 (Ala. Crim. App. 2016) (claim was properly dismissed
where petitioner failed to plead contents of expert's testimony
or how he was prejudiced by the absence of testimony).
Because [Byrd] is not intellectually disabled, even given more
time, counsel could not have proven he was intellectually
disabled. Thus, [Byrd] cannot prove prejudice.
26
CR-2023-0545
"Having considered the allegations of the petition and
the arguments of the State and having heard argument from
both parties, Claim II is hereby summarily dismissed under
Rules 32.3, 32.6(b), and 32.7(d)."
(C. 79-82.)
On appeal, although Byrd asserts that the circuit court erred in
summarily dismissing his ineffective-assistance-of-counsel claim, he fails
to address the circuit court's judgment in any meaningful way. Almost
all of this part of Byrd's brief is simply a condensed version of the claims
he raised in his petition asserting that he is intellectually disabled and
that his trial counsel were ineffective in preparing for and presenting his
Atkins claim.
In his brief, Byrd specifically references only two parts of the circuit
court's judgment dismissing his petition. He first refers to a part of the
judgment addressing a different ineffective-assistance-of-counsel claim
(the alleged ineffectiveness of trial counsel in preparing for the penalty
phase—a claim addressed below). (Byrd's brief, p. 37 (citing C. 91-92).)
He also refers specifically to the circuit court's "determin[ation] that
because Dr. Ackerson testified that [Byrd] had a low IQ, Byrd failed to
show how trial counsel was ineffective when 'testimony regarding his low
27
CR-2023-0545
IQ was solicited from Dr. Ackerson by his trial counsel, but simply
rejected by the court.' " (Byrd's brief, p. 45 (citing C. 81).) Byrd asserts
that this finding "ignores the substantial case law holding that trial
counsel could still be ineffective for proffering some evidence if they fail
to present other probative evidence available to them." (Byrd's brief, p.
45.)
Byrd's assertions that the circuit court erred in summarily
dismissing his claim do not address in any detail the actual findings of
the circuit court. This fails to satisfy Rule 28(a)(10), Ala. R. App. P. See
Woodward v. State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018) ("In his
brief on appeal, Woodward reasserts this claim from his petition, but he
makes no argument regarding why he believes the circuit court's findings
were incorrect. This Court has held that similar failures of argument do
not comply with Rule 28(a)(10), Ala. R. App. P., and constitute a waiver
of the underlying postconviction claim. See, e.g., Morris v. State, 261 So.
3d 1181 (Ala. Crim. App. 2016); Bryant v. State, 181 So. 3d 1087, 1118-
19 (Ala. Crim. App. 2011); and Taylor v. State, 157 So. 3d 131, 142-45
(Ala. Crim. App. 2010)."). See also Bohannon v. State, 401 So. 3d 302, 326
(Ala. Crim. App. 2023) ("[I]t should be obvious by now that the practice
28
CR-2023-0545
of merely copying a Rule 32 claim into an appellate brief is not an
argument that complies with Rule 28(a)(10). Yet, for whatever reason,
that practice persists, so we take this opportunity to expressly provide
the following warning to Rule 32 petitioners and their appellate counsel:
Merely copying a Rule 32 claim into an appellate brief, without
explaining why the dismissal of the claim was improper, does not comply
with Rule 28(a)(10), and such 'arguments' provide this Court with a basis
for holding that the claim has been waived and need not be considered on
appeal." (emphasis added)).
Even so, for the reasons the circuit court cited in its rejection of the
claim, we also hold that Byrd failed to adequately plead his claim that
his trial counsel were ineffective in preparing and presenting his Atkins
claim. The circuit court did not err in summarily dismissing this claim.
See Rule 32.7(d), Ala. R. Crim. P.
III. CONSTRUCTIVE DENIAL OF COUNSEL
Citing United States v. Cronic, 466 U.S. 648 (1984), Byrd argues
that the circuit court erred in summarily dismissing his "claim that he
suffered a constructive denial of counsel during the pre-indictment
period." (Byrd's brief, p. 49.) Byrd states in his brief an abbreviated
29
CR-2023-0545
version of the allegations in his petition that he had a "near-total lack of
assistance during the almost four months between [his] arraignment and
his indictment." (Byrd's brief, p. 50.) Summarizing those allegations,
Byrd states:
"•Byrd's initial counsel, Fred Pickard, did no work on the case
whatsoever for approximately two months, and therefore did
not provide Byrd with any legal assistance during the critical
initial days after his arraignment. …
"•Wess and Anthony likewise did almost nothing between
appointment and indictment. They failed to conduct any
investigation. … An investigation would have revealed
evidence of [Byrd's] intellectual disability. …
"•They failed to meet with the District Attorney's Office or to
make any effort to persuade it that indictment on a lesser
charge would be appropriate, or to explore the possibility of
cooperation or a plea."
(Byrd's brief, pp. 50-51.)
Byrd asserts that, "if counsel had investigated the readily available
evidence of his intellectual disability and other mitigating evidence
during the pre-indictment phase, counsel could have made a compelling
case to the District Attorney that a lesser charge and sentence would be
appropriate." (Byrd's brief, p. 51.) He also reiterates his claim that he is
intellectually disabled, and he asserts that "raising the issue of whether
Byrd was intellectually disabled with the State in the early stages of the
30
CR-2023-0545
case would not have required full litigation of that issue in order to
persuade the State that there was a viable Atkins claim that should lead
to a non-capital disposition." (Byrd's brief, p. 52 (emphasis in original).)
In rejecting this claim, the circuit court found:
"In Claim III, [Byrd] argues that he suffered
constructive denial of counsel during the pre-indictment stage
of proceedings. [Byrd] claims that trial counsel failed to
investigate [Byrd's] medical, educational, or social history.
Additionally, trial counsel failed to meet with his family, or
gather educational, employment, or school records that would
have indicated his intellectual disability and ineligibility for
the death penalty under Atkins. As a result of their failure to
investigate, trial counsel were not able to engage with the
prosecution with respect to whether a capital murder charge
should be sought.
"[Byrd] contends that had trial counsel provided
evidence of intellectual disability, there is a reasonable
probability that the prosecution would have agreed to a lesser
charge or considered a plea involving a sentence with the
possibility of parole. However, [Byrd] fails to allege how any
lesser sentence would have been available if counsel had
started investigating Byrd’s intellectual functioning earlier.
Additionally, as addressed earlier, the record establishes that
Byrd is not intellectually disabled so this claim lacks merit.
Claims that do not plead such critical facts do not comply with
Rule 32.6(b). Mashburn v. State, 148 So. 3d 1094, 1150 [(Ala.
Crim. App. 2013)]. Alabama has recognized few instances
where the prejudice prong of the Strickland analysis is
presumed without proof. Hunt v. State, 940 So. 2d 1041, 1056
(Ala. Crim. App. 2005). Moreover, it should also be noted that
[Byrd] considered and declined a plea offer to life without the
possibility of parole during plea discussions prior to trial."
31
CR-2023-0545
(C. 82-83.)
Regarding a claim of a "constructive denial" of counsel under
Cronic, this Court has stated:
"The United States Supreme Court in Cronic held that
prejudice is presumed when a defendant 'is denied counsel at
a critical stage of his trial.' 466 U.S. at 659, 104 S. Ct. 2039.
However, this exception has been narrowly applied.
" '[T]he Cronic exception is exceedingly narrow, see
Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551,
160 L.Ed.2d 565 (2004), and applies where the
defendant has demonstrated that "the attorney's
failure [was] complete," Bell v. Cone, 535 U.S. 685,
696-97, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).
In other words, "the circumstances leading to
counsel's ineffectiveness [must be] so egregious
that the defendant was in effect denied any
meaningful assistance at all." United States v.
Griffin, 324 F.3d 330, 364 (5th Cir. 2003) (citation
omitted).
" 'The Cronic exception has been applied in
cases where counsel slept as evidence was being
introduced against the defendant, Burdine v.
Johnson, 262 F.3d 336, 338 (5th Cir. 2001) (en
banc), where counsel adopted and acted upon a
belief that his client should be convicted, Osborn v.
Shillinger, 861 F.2d 612, 625 (10th Cir. 1988), and
where counsel sat silently throughout the entire
trial, see Harding v. Davis, 878 F.2d 1341, 1345
(11th Cir. 1989). But it has been held inapplicable
to cases involving "bad lawyering, regardless of
how bad." Scarpa [v. Dubois], 38 F.3d [1] at 13 [(1st
Cir. 1994)] (citation omitted). "Attorney error,
even when egregious, ... almost always require[s]
32
CR-2023-0545
analysis under Strickland's prejudice prong." Id. at
14.'
"United States v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006)."
State v. Lewis, 371 So. 3d 863, 887 (Ala. Crim. App. 2022).
The circuit court did not err in finding this claim inadequately
pleaded. Byrd's allegations focus on two issues—his Atkins claim and a
plea deal, which he rejected. But even assuming that counsel—as Byrd
asserts—did "nothing" during the four months at issue, this case does not
support applying the narrow exception recognized in Cronic. See Lewis,
supra. Thus, Byrd had to plead facts to show that he was prejudiced by
counsel's alleged ineffectiveness. He did not do so. His assertion that, if
his attorneys had done more earlier, the result of the proceedings would
have been different is no more than a bare allegation.
Byrd is due no relief on this claim. See Rule 32.7(d), Ala. R. Crim.
P.
IV. INEFFECTIVE ASSISTANCE IN JURY SELECTION
Byrd asserted in his petition many ineffective-assistance-of-counsel
claims related to jury selection. On appeal, Byrd summarizes those
claims as "trial counsel failed to take reasonable steps to shape the jury
that would sit in judgment of [Byrd]," which, he says, included (1) not
33
CR-2023-0545
"consider[ing] the effects of pre-trial publicity on the venire"; (2) not
considering "the venire's racial composition"; (3) failing "to check for bias
of potential jurors"; and (4) not "effectively challeng[ing] the State's use
of peremptory challenges to eliminate women and African-Americans."
(Byrd's brief, p. 53.)
Byrd begins his argument in this part of his brief with two one-
sentence assertions of error. (Byrd's brief, p. 54.) He first argues that the
circuit court "ignored binding Eleventh Circuit precedent, United States
v. Tuttle, 729 F.2d 1325, 1327 (11th Circ. 1984), in rejecting Byrd's
argument that racial disparities in the jury venire provided a basis for
trial counsel to pursue a claim under Duren v. Missouri, 439 U.S. 357
(1979)." He follows that sentence by stating: "And it did not meaningfully
engage with Byrd's argument that trial counsel should have questioned
the juror during voir dire regarding biases related to race and Byrd's
intellectual disability." Neither assertion complies with Rule 28(a)(10),
Ala. R. App. P., and we will not address them. See Woodward, 276 So. 3d
at 746; C.B.D. v. State, 90 So. 3d 227, 239 (Ala. Crim. App. 2011) (" '[W]e
are not required to consider matters on appeal unless they are presented
and argued in brief with citations to relevant legal authority.' Zasadil v.
34
CR-2023-0545
City of Montgomery, 594 So. 2d 231, 231 (Ala. Crim. App. 1991). 'When
an appellant fails to cite any authority for an argument on a particular
issue, this Court may affirm the judgment as to that issue, for it is neither
this Court's duty nor its function to perform an appellant's legal
research.' City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747,
752 (Ala. 1998). Failure to comply with Rule 28(a)(10) has been deemed
a waiver of the issue presented. See, e.g., Hamm v. State, 913 So. 2d 460,
486 (Ala. Crim. App. 2002). Therefore, because C.B.D.'s argument in this
regard does not comply with Rule 28(a)(10), it is deemed to be waived.").
Byrd next asserts that the circuit court erred in denying his claim
based on Batson v. Kentucky, 476 U.S. 79 (1986), and J.E.B. v. Alabama,
511 U.S. 127 (1994). (Byrd's brief, p. 54.) The circuit court addressed this
claim by finding:
"[Byrd] next alleges that the State used a disproportionate
number of its peremptory challenges to strike African
Americans and women from the jury and trial counsel did not
challenge these strikes as violations of either Batson v.
Kentucky, 476 U.S. 79, 96 (1986), or J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 146 (1994). [Byrd] argues that the State's
pattern of strikes raised an inference that they were racially
motivated. Although the law is clear that prejudice is
presumed in cases where counsel fails to make a Batson
objection (Hunt v. State, 940 So. 2d 1041, 1056-57 (Ala. Crim.
App. 2005)), Byrd does little besides plead the numbers and
percentages of several classes of potential jurors struck in his
35
CR-2023-0545
petition. The Court of Criminal Appeals has said '[n]umbers
alone are not sufficient to establish a prima facie case of
discrimination.' Gobble v. State, 104 So. 3d 920, 949 (Ala.
Crim. App. 2010) (quoting Blackmon v. State, 7 So. 3d 397
(Ala. Crim. App. 2005)). As [Byrd] concedes, although the
venire was just 35.7% African-American, they made up 41.7%
of the jury. Moreover, although the venire was 55.4% female,
50% of the jury was female.
"[Byrd's] bare claim that trial counsel could have raised
an objection and thus must raise an objection in order to avoid
deficient performance is contrary to Alabama law and
Eleventh Circuit precedent. Woodward [v. State], 276 So. 3d
[713,] 751 [(Ala. Crim. App. 2018)]; see also King v. Sec’y,
Dep't of Corr., 793 F. App'x 834, 840 (11th Cir. 2019), cert.
denied sub nom., King v. Inch, 141 S. Ct. 303, 208 L. Ed. 2d
55 (2020) (rejecting a challenge to trial counsel's decision not
to raise a Batson objection because 'an attorney does not
perform incompetently when, as here, she makes a strategic
decision that other competent attorneys might have made.')
Where, as here, trial counsel must be presumed to have made
a reasoned decision not to raise a Batson objection, the mere
fact that he did not raise the objection cannot show deficient
performance. Moreover, the factual basis of this claim,
assuming its truth, would not show deficient performance; at
most, [Byrd] raises a potential objection in hindsight. But
courts reviewing Strickland claims must avoid the distorting
effects of hindsight."
(C. 84-85.)
Byrd focuses on the circuit court's statement that " '[n]umbers alone
are not sufficient to establish a prima facie case of discrimination.' " Byrd
argues that the circuit court "ignored the specific examples of disparate
treatment identified in the petition, as well as case law establishing that
36
CR-2023-0545
a pattern of peremptory challenges can be 'sufficient to raise suspicions
about the prosecution's motives and to call for the prosecution to explain
its strikes.' " (Byrd's brief, p. 55 (quoting Davis v. Ayala, 576 U.S. 257,
285 (2015).) He also asserts that the circuit court "ignored the fact that
the claim is based on ineffectiveness established by trial counsel's failure
to challenge the prosecution's strikes and to make the kind of
contemporaneous record necessary to support Batson relief in the first
instance." (Byrd's brief, p. 56.) Although he cites authority, we question
whether Byrd's brief argument complies with Rule 28(a)(10), Ala. R. App.
P.
What's more, Byrd does not address that part of the circuit court's
judgment based on the presumption that trial counsel acted reasonably.
In Woodward, this Court stated:
"Generally, ' "the failure by counsel in a capital case to
raise any particular claim or claims does not per se fall below
an objective standard of reasonableness." ' Horsley v. State,
527 So. 2d 1355, 1359 (Ala. Crim. App. 1988) (quoting Lindsey
v. Smith, 820 F.2d 1137, 1144 (11th Cir. 1987)). In Yelder v.
State, 575 So. 2d 137, 139 (Ala. 1991), the Alabama Supreme
Court held that 'the failure of trial counsel to make a timely
Batson objection to a prima facie case of purposeful
discrimination by the State in the jury selection process
through its use of peremptory challenges is presumptively
prejudicial to a defendant.' However, the 'holding in Yelder
does not relieve the defendant of his burden of meeting the
37
CR-2023-0545
first prong of the Strickland test—a showing of deficient
performance by counsel,' Ex parte Frazier, 758 So. 2d 611, 615
(Ala. 1999), and this Court has recognized that the decision
whether to make a Batson objection may be a strategic one.
In Carruth v. State, 165 So. 3d 627 (Ala. Crim. App. 2014),
this Court held that a Rule 32 petitioner had failed to plead
sufficient facts in his petition to indicate that counsel had
been ineffective for not raising a Batson objection because the
petitioner had failed to plead facts indicating that there was
a prima facie case of discrimination and had failed to allege
that counsel's decision not to make a Batson objection was not
sound trial strategy. In doing so, this Court noted that
'[c]ounsel could have been completely satisfied with the jury
that was selected and not wished to potentially disturb its
composition by making a Batson challenge.' Carruth, 165 So.
3d at 639.
"Other jurisdictions have similarly recognized that it is
not per se deficient performance for counsel not to make a
Batson objection even when there is a prima facie case of
discrimination. See, e.g., Flanagan v. State, 712 N.W.2d 602,
609-10 (N.D. 2006); Davis v. State, 123 P.3d 243, 246-47 (Ok.
Crim. App. 2005); and Randolph v. Delo, 952 F.2d 243, 246
(8th Cir. 1991). Generally, 'the decision to make or not make
a Batson challenge falls within trial counsel's trial strategy
and the wide latitude given him, to which appellate courts
must defer.' Hall v. State, 735 So. 2d 1124, 1128 (Miss. Ct.
App. 1999). We agree, and we hold that counsel's failure to
make a Batson objection when there is a prima facie case of
discrimination is not per se deficient performance."
276 So. 3d at 751.
As the circuit court stated, " '[n]umbers alone are not sufficient to
establish a prima facie case of discrimination.' Gobble v. State, 104 So.
3d 920, 949 (Ala. Crim. App. 2010) (quoting Blackmon v. State, 7 So. 3d
38
CR-2023-0545
397 (Ala. Crim. App. 2005))." Although Byrd cited four specific
prospective jurors as examples of the prosecutor's allegedly disparate
treatment of prospective jurors, his allegations do not overcome the
presumption that trial counsel's failure to object was not sound trial
strategy. See Carruth v. State, 165 So. 3d 627, 639 (Ala. Crim. App.
2014).7
Byrd has not shown that the circuit court erred in finding his claim
insufficiently pleaded. He is due no relief on this issue.
V. PLEA NEGOTIATIONS
In his petition, Byrd asserted ineffectiveness claims related to an
alleged offer from the State of a sentence of life imprisonment without
the possibility of parole ("LWOP"). Byrd summarizes this claim in his
brief on appeal:
"[T]rial counsel failed to provide Roderick Byrd with effective
assistance with respect to a plea, including by failing to advise
him from the outset of the necessity of a disposition by plea,
failing to pursue a plea[,] and, when the prosecution made an
7In Carruth, this Court noted that the record showed that Carruth's
trial counsel "affirmatively stated that they did not have any [Batson or
J.E.B.] challenges." 165 So. 3d at 639. Byrd's trial counsel did not
affirmatively state that they had no challenges under Batson or J.E.B.
But despite having expressed Batson concerns at an earlier point in the
proceeding, trial counsel raised no objection to the jury after the parties
exercised their peremptory strikes. (See Trial R. 312, 515.)
39
CR-2023-0545
LWOP plea offer shortly before trial, failing to advise him
adequately with respect to that offer. … [B]ut for trial
counsel's deficient performance, [Byrd] would have accepted
the plea offer, pleaded guilty[,] and received an LWOP
sentence. … Trial counsel's ineffectiveness was compounded
by Byrd's intellectual disability: despite having some evidence
of [Byrd's] limitations, trial counsel took no steps to ensure
that he would comprehend the consequences of a decision to
reject a plea offer."
(Byrd's brief, pp. 56-57.) Byrd alleged in his petition that "in April 2007
… the prosecution conveyed to trial counsel an oral plea offer that
included an LWOP sentence." (C. 226.) Byrd asserted that "trial counsel
did not even discuss a plea deal with Mr. Byrd until his trial was set to
begin—ten months after the State indicated that [it] would consider such
a deal."8 (C. 226 (emphasis added).) Byrd asserted that trial counsel
initially mentioned the alleged April 2007 plea offer only to Byrd's aunt,
LaTonja McDonald. (C. 226.) But Byrd asserted that,
"[o]n the morning that the trial was set to begin, trial counsel
met with Mr. Byrd in a room adjacent to the courtroom to
discuss the plea offer. Trial counsel asked Ms. McDonald to
join them presumably on the theory that she could assist them
in explaining the compelling case for pleading guilty in
8Byrd asserted in his petition that trial counsel "should have
explored plea options from the outset of their representation" but did not
do so. (C. 226.) Byrd's trial was in June 2007. If, as Byrd alleges in his
petition, counsel waited until June 2007 to talk to Byrd about a plea deal,
then trial counsel and the State were in fact in discussions about the
possibility of plea deal within months of Byrd's indictment in May 2006.
40
CR-2023-0545
exchange for a guaranteed sentence of LWOP. Trial counsel
knew that Mr. Byrd had said in his statement to the police
and had told his family that he didn't shoot anyone and that
Mr. Mitchell had shot all three victims. Based on this, Mr.
Byrd mistakenly believed that he could not be convicted of
capital murder. After trial counsel described the plea offer,
Ms. McDonald indicated to Mr. Byrd that if he did not shoot
anyone, he should go to trial rather than take the plea offer.
She said that if she were in his position, she would go to trial.
Hearing that, Mr. Byrd rejected the plea as instructed. Mr.
Byrd, Ms. McDonald, and trial counsel will testify to these
facts."
(C. 227.) Byrd asserted that, "[d]espite their awareness of Mr. Byrd's
severe intellectual deficits, trial counsel did nothing to ensure that Mr.
Byrd understood that he could be convicted for capital murder even as a
non-shooter" and did not "ensure that Mr. Byrd comprehended that he
could be convicted of capital murder and sentenced to death as an
accomplice even if he did not shoot anyone." (C. 228 (emphasis added).)
Byrd asserted that trial counsel did not take more time to meet with Byrd
alone and "explain to Mr. Byrd that the State had ballistics evidence to
support their theory that there were two shooters … and that trial
counsel had no rebuttal to that ballistics evidence." (C. 228.) Byrd
asserted that McDonald would testify that, if trial counsel had explained
that pleading guilty to capital murder would not necessarily mean that
Byrd was admitting to shooting someone, she would have advised Byrd
41
CR-2023-0545
to accept the plea offer and that he would have accepted it. (C. 227-28.)
Byrd asserted that, in discussing the plea offer with him, trial counsel
"failed to account for Mr. Byrd's intellectual disability." (C. 225.) Finally,
Byrd asserted that the circuit court should "order the State to reoffer the
plea deal and resentence Mr. Byrd accordingly." (C. 234.)
The circuit court found this claim inadequately pleaded:
"[Byrd] claims that the proper remedy is for this court to order
the State to re-offer the plea deal. [Byrd] asserts that trial
counsel failed to discuss a plea offer with [Byrd] when the
State indicated its openness to one and thus lost the
opportunity to have a reasonable and appropriately thorough
discussion with him. There is no basis to order the State to re-
offer the plea deal because it is not clear from [Byrd's] petition
whether the State ever officially offered [Byrd] a lesser
sentence in exchange for pleading guilty. Further, [Byrd] has
not plead[ed] specifically that he was not properly advised of
the alleged plea offer and his options, and that he would have
accepted the plea. Thus, he does not plead the 'full factual
basis for [his] claim.' Washington v. State, 95 So. 3d [26,] 59
(Ala. Crim. App. 2012).
"Next, [Byrd] claims that trial counsel failed to explore
plea options from the outset, even though they knew or should
have known the difficulty of defending [Byrd] in light of the
State's overwhelming evidence, including (i) a video of the
crime scene showing [Byrd] at the scene and holding a gun;
(ii) ballistics evidence indicating that two guns were used to
kill the victims; and (iii) [Byrd]'s admission that he had a gun
and his equivocation about whether Brandon Mitchell had
two guns. [Byrd] alleges that trial counsel were aware of
[Byrd's] intellectual disability and limitations, but they failed
to take account of those limitations in explaining the plea offer
42
CR-2023-0545
and the risks of trial to allow [Byrd] to understand his
situation and act accordingly. This assertion is belied by the
record, as the record reflects that [Byrd] is not intellectually
disabled. See Byrd, 78 So. 3d at 451 ….
"[Byrd] alleges he was not informed that even if he did
not shoot anyone, he likely would still be convicted of capital
murder and sentenced to death. In summary, [Byrd] argues
that trial counsel did not tell him that the plea offer was as
good as and likely better than the best possible outcome of
trial. Unfortunately, [Byrd] fails to plead specifically what
information trial counsel did convey to him or what his
response would have been, or that, armed with this additional
information, he would have taken the plea deal. The record
indicates that after discussions with trial counsel with a
family member present, [Byrd] chose not to take any plea
deal. Counsel cannot be held ineffective for the informed and
voluntary choices of their client. Moreover, a defendant
cannot voluntarily choose a course of action and then blame
trial counsel for that course of action. Ferguson v. State, 13
So. 3d 418, 439 (Ala. Crim. App, 2008)."
(C. 86-87.)
On appeal, Byrd argues (1) that the circuit court was "flatly wrong"
in finding that the petition did not clearly allege that the State had
" 'officially offered [Byrd] a lesser sentence in exchange for pleading
guilty' "; (2) that the circuit court erred in finding that Byrd did not
specifically plead "that he was not properly advised of the alleged plea
offer and his options"; and (3) that the circuit court erred in finding "that
Byrd had not alleged that if properly advised, 'he would have taken the
43
CR-2023-0545
plea deal.' " (Byrd's brief, pp. 59-61.)
As with other arguments on appeal, Byrd's arguments are mostly
restatements of the claims in his petition with no legal authority showing
that the circuit court erred. Thus, we question whether this part of Byrd's
brief complies with Rule 28(a)(10), Ala. R. App. P. See Bohannon, 401
So. 3d at 326.
Regardless, Byrd is due no relief on these arguments. Byrd pleaded
nothing about the terms of an "official offer" from the State other than
the sentence.9 With no allegations about the terms of the deal, the circuit
court could only speculate about whether Byrd, as Byrd asserted in his
petition, would not have had to admit to shooting one or more of the
victims. Thus, as the circuit court found, Byrd did "not plead the 'full
factual basis for [his] claim.' Washington v. State, 95 So. 3d [26,] 59 (Ala.
Crim. App. 2012)."
What's more, the circuit court did not err in finding that Byrd had
failed to specifically plead that he was not properly advised of the plea
offer and his options. The terms of the plea offer—other than the alleged
9Byrd did not plead, for example, whether the State wanted Byrd to
plead guilty to all four counts of capital murder or to some lesser number
of counts or to a lesser offense.
44
CR-2023-0545
sentence—are speculative.
Byrd is due no relief on this issue. See Rule 32.7(d), Ala. R. Crim.
P.
VI. INEFFECTIVENESS IN CHALLENGING THE ADMISSIBILITY
OF HIS STATEMENT TO LAW-ENFORCEMENT OFFICERS
Byrd argues that his trial counsel were ineffective in challenging
the admissibility of his statement to law-enforcement officers. (Byrd's
brief, p. 62.)
On direct appeal, this Court held that there was no error, plain or
otherwise, in the admission of Byrd's statement:
"Byrd next argues that the circuit court erroneously
allowed the State to introduce into evidence a statement he
gave to law-enforcement officers. Specifically, Byrd argues
that due to his mental deficiencies (i.e., his alleged mental
retardation and/or his low IQ), he was incapable of knowingly
waiving his Miranda [v. Arizona, 384 U.S. 436 (1966),] rights.
Byrd bases his argument on his school records and Dr.
Ackerson's testimony that his low IQ could have affected his
ability to understand his Miranda rights. The State asserts
that Byrd's argument is without merit because Byrd is not
mentally retarded and because the totality of the
circumstances establishes that his waiver of his Miranda
rights was knowing and voluntary. We agree.
" 'It has long been the law that a confession is prima facie
involuntary and inadmissible, and that before a confession
may be admitted into evidence, the burden is upon the State
to establish voluntariness and a Miranda predicate.' Waldrop
v. State, 859 So. 2d 1138, 1155 (Ala. Crim. App. 2000) (citing
45
CR-2023-0545
Jackson v. State, 562 So. 2d 1373, 1380 (Ala. Crim. App.
1990)). 'The trial court's finding that a statement was
voluntary need only be supported by a preponderance of the
evidence.' Ex parte Jackson, 836 So. 2d 979, 982 (Ala. 2002)
(citing Dixon v. State, 588 So. 2d 903 (Ala. 1991)). ' "Whether
a waiver is voluntary, knowing, and intelligent depends on the
particular facts and underlying circumstances of each case,
including the background, experience, and conduct of the
accused—i.e., the totality of the circumstances." ' Waldrop,
859 So. 2d at 1156 (quoting Click v. State, 695 So. 2d 209 (Ala.
Crim. App. 1996)); see also Ex parte Matthews, 601 So. 2d 52,
54 (Ala. 1992) (holding that a court must analyze the
voluntariness of a confession by examining the totality of the
circumstances).
"A defendant's low IQ is only one factor that must be
considered when reviewing the totality of the circumstances.
See Dobyne v. State, 672 So. 2d 1319, 1337 (Ala. Crim. App.
1994); Beckworth v. State, 946 So. 2d 490, 517 (Ala. Crim.
App. 2005). 'While an accused's intelligence and literacy are
important factors, ... weak intellect or illiteracy alone will not
render a confession inadmissible.' Hobbs v. State, 401 So. 2d
276, 282 (Ala. Crim. App. 1981); see also Hodges v. State, 926
So. 2d 1060, 1073 (Ala. Crim. App. 2005) (same); cf. Colorado
v. Connelly, 479 U.S. 157, 165, 107 S. Ct. 515, 93 L. Ed. 2d
473 (1986) (holding that mental defects alone are insufficient
to establish that a confession was involuntary under the Due
Process Clause). As this court stated in Beckworth: '[A]
defendant's low IQ does not preclude a finding that a Miranda
waiver was voluntary unless the defendant is so mentally
impaired that he did not understand his Miranda rights.' 946
So. 2d at 517 (citing Dobyne, 672 So. 2d at 1337); see Moore v.
Dugger, 856 F.2d 129, 132 (11th Cir. 1988) (mental
deficiencies, in the absence of police coercion, are not
sufficient to establish involuntariness, and the fact that the
defendant was generally calm and responsive during
interrogation, that he did not appear confused, and that he
understood the questions put to him established a valid
46
CR-2023-0545
waiver of Miranda rights, despite the defendant's low IQ).
"Contrary to Byrd's assertions, Dr. Ackerson's testimony
that his low IQ could have affected his ability to understand
his rights is insufficient to show that he was 'so mentally
impaired that he [in fact] did not understand his Miranda
rights.' Beckworth, 946 So. 2d at 517 (citing Dobyne, 672 So.
2d at 1337). Dr. Ackerson did not testify that Byrd's low IQ
rendered him incapable of understanding his rights; instead,
she merely stated that Byrd's low IQ could have affected his
understanding of his rights. Without more, this testimony is
insufficient to preclude a finding that Byrd knowingly and
voluntarily waived those rights.
"Moreover, this court's review of the record and of Byrd's
statement convinces us that Byrd did, in fact, understand his
rights and that he knowingly waived them. Prior to Byrd's
statement, law-enforcement officers identified themselves
and clearly informed Byrd of his Miranda rights. (R. 84; C.R.
247.) Detective Cynthia Morrow testified that Byrd, after
being read his Miranda rights, stated that he understood his
rights and that he voluntarily chose to waive those rights. (R.
84-90.) Detective Morrow further testified that Byrd was not
threatened or coerced in any manner. Id.
"Detective Morrow's testimony is corroborated by Byrd's
tape-recorded statement and a waiver-of-rights form that he
signed. Prior to any questioning, Byrd clearly and articulately
read aloud and then signed the statement on the waiver-of-
rights form acknowledging, among other things, that: 1) he
had been informed of and understood his rights; 2) he
voluntarily chose to speak with law-enforcement officers; and
3) no force, threats, or promises had been used to induce him
to waive his rights. (C.R. 247.) During the interview, Byrd was
calm, responsive, and did not appear confused. His answers to
the questions posed establishes that he understood those
questions. The fact that Byrd altered his statement when he
was confronted with evidence indicating that he was not being
47
CR-2023-0545
truthful establishes that he was lucid and thinking about his
responses. Finally, the fact that Byrd required the officers to
take a break and that he eventually invoked his right to
remain silent establishes that he understood his Miranda
rights and understood that he could invoke those rights at any
time. See United States v. Dryden, 567 F. Supp. 2d 643, 653
(D. Del. 2008) (holding that a defendant's invocation of his
rights establishes that he understood those rights).
"Based on the foregoing, this court is convinced that
Byrd knowingly and voluntarily waived his Miranda rights
and that his mental deficiencies did not invalidate that
waiver. Consequently, the circuit court correctly allowed
Byrd's statement to be introduced into evidence."
Byrd, 78 So. 3d at 453-54 (footnotes omitted).
In the part of his brief on this issue, Byrd offers a condensed version
of the allegations he made in his petition, in which (1) he challenged this
Court's holding on direct appeal that his statement was properly
admitted into evidence and (2) alleged that, if trial counsel had conducted
more investigation into Byrd's "intellectual limitations," counsel could
have shown that Byrd's statement was involuntary because, Byrd
asserted, he lacked the comprehension skills to understand his Miranda
rights. (C. 235-68.)
In rejecting this claim, the circuit court found:
"[Byrd] alleges that Trial Counsel were ineffective in not
developing and presenting evidence supported by experts that
his intellectual limitations made any waiver of his Miranda
48
CR-2023-0545
rights invalid and his subsequent statements to investigators
inadmissible. In a statement made following Miranda
warnings, [Byrd] admitted that he had participated in the
Airport Inn robbery and had carried a gun. [Byrd's] statement
was central to the State's argument for a capital murder
conviction and a death sentence. [Byrd] argues that he was
unable to understand a Miranda warning and Dr. Kathleen
Fahey, an expert in speech-language pathology, who was
available to testify at the time of trial, would have testified
that in her professional opinion, [Byrd] lacked comprehension
skills to understand the warnings given and could not have
knowingly waived his rights.
"[Byrd] further argues that his ability to waive his
Miranda rights was also affected by his demonstrated below-
average intellectual functioning. Dr. George Woods, a
neuropsychiatrist who was available to testify at the time of
trial, would have testified that [Byrd] has an intellectual
disability and a neurodevelopmental disorder, each of which
increased his susceptibility to deception and negatively
affected the voluntariness of his statement and his ability to
terminate questioning. Trial counsel did not investigate
[Byrd's] intellectual limitations or vulnerabilities until a few
days before trial and never considered, strategically or
otherwise, their relevance to his waiver of Miranda rights.
[Byrd] asserts that had trial counsel (a) met prevailing
professional standards in investigating and developing
evidence of Mr. Byrd's intellectual limitations; (b) engaged
expert assistance with respect to such evidence; and (c)
presented such evidence and supportive expert testimony,
there is a reasonable probability that Mr. Byrd's statement
would have been excluded and the outcome at trial would
have been different.
"[Byrd's] claim lacks merit as argued by the State
because the Court of Criminal Appeals correctly found, [Byrd]
is not intellectually disabled. See Byrd, 78 So. 3d at 542 ….
This claim is also meritless because the Court of Criminal
49
CR-2023-0545
Appeals addressed the admissibility of Byrd's statement on
direct appeal and held that it was correctly admitted. Trial
counsel cannot be held ineffective for failing to raise meritless
issues nor failing to make a challenge that has no basis in fact
or law. Magwood v. State, 689 So. 2d 959, 979-81 (Ala. Crim.
App. 1996). The Court of Criminal Appeals was convinced that
Byrd knowingly and voluntarily waived his Miranda rights
and that his mental deficiencies did not invalidate that
waiver. Consequently, the circuit court correctly allowed
Byrd's statement to be introduced into evidence. Byrd, 78 So.
3d at 453-55 …."
(C. 87-88.) On appeal, Byrd's only specific assertion of error is his
concluding paragraph in this part of his brief:
"As a result of trial counsel's ineffectiveness, the trial
record did not include the available evidence regarding Byrd's
intellectual limitations and comprehension skills nor a
challenge to the admissibility of his statement on the basis of
such evidence. The ruling on direct appeal regarding the
admissibility of Byrd's statement thus could not and did not
account for evidence of his intellectual limitations that did not
appear in the record because of the ineffective assistance of
counsel. Thus, the Trial Court's determination does not create
a bar to Rule 32 consideration of this claim."
(Byrd's brief, p. 65.) Other than citations to his petition, Byrd cites no
authority in support of this assertion. This fails to satisfy Rule 28(a)(10),
Ala. R. App. P. See Bohannon, supra. Byrd is due no relief on this issue.
VII. CLAIMS ASSERTING INEFFECTIVENESS DURING THE
GUILT PHASE
In this part of his brief, Byrd summarizes some of the allegations
50
CR-2023-0545
he made in Claim VII of his petition, in which he asserted that his trial
counsel provided ineffective assistance during the guilt phase based on
(1) "trial counsel's failures to investigate the crime scene and challenge
the trial video"; (2) "trial counsel's failure to investigate and challenge
the State's ballistics evidence"; and (3) "trial counsel's failure to
investigate and introduce evidence concerning Byrd's lack of specific
intent." (Byrd's brief, pp. 65-75.) Byrd asserts that, because of those
"investigatory failures," trial counsel "were fundamentally unprepared
for trial." (Byrd's brief, p. 75.) He states that, if counsel had "conducted a
reasonable investigation in support of their defense theory and developed
the evidence available to support it at trial, they would have improved
their bargaining position and had at least a chance of obtaining a felony
murder conviction." (Byrd's brief, p. 75.)
In summarily dismissing this claim, the circuit court stated:
"In Claim VII, [Byrd] alleges that trial counsel provided
ineffective assistance by failing to investigate and present
evidence necessary to their chosen defense strategy. [Byrd]
argues a laundry list of things trial counsel should have done
to promote their defense strategy. In summary, trial counsel
had to: (1) undermine the State’s surveillance video evidence;
(2) challenge the State's evidence regarding the firearm used
to kill Mr. Aylesworth; and (3) present evidence relevant to
Mr. Byrd's lack of specific intent. Per [Byrd], … trial counsel
had a duty to investigate all plausible lines of defense and, in
51
CR-2023-0545
particular, those necessary to their chosen trial strategy. E.g.,
Dill v. State, 484 So. 2d 491, 497 (Ala. Crim. App. 1985); State
v. Smith, 85 So. 3d 1063, 1080-82 (Ala. Crim. App. 2010).
[Byrd] argues that had trial counsel provided effective
assistance, there is a reasonable probability of different
outcomes both as to guilt and as to penalty.
"The State argues that [Byrd's] assertions that trial
counsel had a duty to 'investigate thoroughly each and every
possible avenue of defense' is plainly wrong. Instead, 'no
absolute duty exists to investigate particular facts or a certain
line of defense.' Chandler v. United States, 218 F.3d 1305,
1317 (11th Cir. 2000). 'Investigation (even a non-exhaustive,
preliminary investigation) is not required for counsel
reasonably to decline to investigate a line of defense
thoroughly.' Id. at 1318 …. Strickland requires that counsel
only make reasonable investigations. Strickland, 466 U.S. at
691 …. [Byrd] has a burden to plead facts showing why each
allegedly deficient act by his counsel was 'objectively
unreasonable.' Daniel v. State, 86 So. 3d [405,] 438 (Ala. Crim.
App. 2011). Further, it is well settled that an attorney can
almost always do something more in every case, but the
Constitution requires a good deal less than maximum
performance by trial counsel. Atkins v. Singletary, 965 F.2d
952, 960 (11th Cir. 1992).
"[Byrd] has failed to allege facts that, if true, would
establish deficient performance or prejudice. Thus, he does
not plead the 'full factual basis for [his] claim.' Washington v.
State, 95 So. 3d [26,] 59 [(Ala. Crim. App. 2012)] …. Instead,
[Byrd] cites what could have or should have been done by trial
counsel and what the possible outcomes would be, which
amounts to mere speculation, and speculation is not enough
to support a showing of prejudice. Woodward v. State, 276 So.
3d [713,] 786 (Ala. Crim. App. 2018); McMillan v. State, 258
So. 3d [1154,] 1178 (Ala. Crim. App. 2017). The law does not
allow [Byrd] to relitigate an issue under the guise of
ineffective assistance of counsel. Hunt v. State, 940 So. 2d
52
CR-2023-0545
1041, 1051-52 (Ala. Crim. App. 2005). Therefore, this claim
and each of its subclaims are dismissed as meritless,
insufficiently pleaded, or both."
(C. 88-89.)
On appeal, Byrd simply restates some of his allegations from Claim
VII and asserts that the circuit court erred. This does not comply with
Rule 28(a)(10), Ala. R. App. P. See Bohannon, 401 So. 3d at 326. Byrd is
due no relief on this claim.10
VIII. CLAIMS ASSERTING INEFFECTIVENESS DURING THE
PENALTY AND SENTENCING PHASES
In this part of his brief, Byrd reiterates some of the allegations he
made in Claims VIII and IX of his petition in which he asserted that his
10Among the many allegations of ineffective assistance that Byrd
asserted were claims that trial counsel should have "retain[ed]
appropriate experts." (C. 270.) Byrd asserted that trial counsel should
have hired or called several unnamed experts, including a "competent
firearms expert" (C. 287); an "expert to present a blood spatter analysis
on the crime scene photographs" (C. 304); an expert to testify about "the
relative positions of the shooter and the victims at the time of the
shooting[s]" (C. 301); and "a crime reconstruction expert" (C. 314). Byrd's
failure to identify specific experts who were available and willing to
testify renders these claims insufficiently pleaded. See, e.g., Thompson v.
State, 310 So. 3d 850, 870 (Ala. Crim. App. 2018) ("Thompson failed to
plead that Dr. Oral was available and that she could have testified as an
expert witness in Alabama in 2005. Thus, Thompson failed to plead the
'full facts' in regard to this claim. See Rule 32.6(b), Ala. R. Crim. P."); see
also Brooks v. State, 340 So. 3d 410, 437 (Ala. Crim. App. 2020).
53
CR-2023-0545
trial counsel provided ineffective assistance during the penalty and
sentencing phases of his trial. (Byrd's brief, pp. 76-97.) The circuit court
summarized Byrd's claims:
"In Claims VIII and IX, [Byrd] alleges that trial counsel
failed to provide effective assistance in investigating and
preparing a mitigation case for presentation to the jury in the
penalty phase (Claim VIII) or to the court at sentencing
(Claim IX). Under 'prevailing professional norms' as defined
by Strickland, counsel in a capital case must conduct an
investigation of mitigation evidence in order to provide
effective assistance. Wiggins v. Smith, 539 U.S. 510, 523
(2003); Williams v. Allen, 542 F.3d 1326, 1339 (11th Cir.
2008). [Byrd] alleges that other than perfunctory meetings
with [Byrd] and a few family members, and the last-minute
discovery of incomplete school records, trial counsel conducted
no mitigation investigation. [Byrd] identifies specific
documentary evidence, lay witness testimony, and expert
witness testimony that were available to trial counsel and
that an investigation would have identified. [Byrd] further
alleges that such evidence is not simply cumulative and that
had trial counsel presented it, there is a reasonable
probability that petitioner would not have been sentenced to
death.
"[Byrd] alleges that trial counsel never hired an
investigator or mitigation specialist, even though engaging
such assistance was the 'professional norm' in capital cases.
In August 2006, trial counsel recognized this norm, moving
for funds to conduct a Pre-Sentence Investigation ('PSI
Motion') 'to present the jury with enough information to
insure they will make a reasoned determination of whether
[Byrd] should be sentenced to death.' They stated further that
'[s]uch investigations are customarily and necessarily
conducted by individuals with specialized training in the
social sciences.' The PSI Motion was granted on behalf of
54
CR-2023-0545
[Byrd] on October 20, 2006, but no investigator or mitigation
specialist was ever retained. [Byrd] contends that there was
considerable evidence that a reasonable investigation
undertaken with the help of appropriate experts and available
witnesses would have been able to develop a compelling
mitigation case."
(C. 90.) In summarily dismissing the claims as insufficiently pleaded, the
circuit court stated:
"Assuming the facts pleaded as true, [Byrd] cannot establish
that counsel performed below professional norms or a
reasonable probability that he would have been sentenced to
life without the possibility of parole had counsel presented
additional mitigating evidence. As the United States Supreme
Court stated:
" '[S]trategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; and
strategic choices made after less than complete
investigation are reasonable precisely to the
extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable
investigations or to make a reasonable decision
that makes particular investigations unnecessary.
In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for
reasonableness in all the circumstances, applying
a heavy measure of deference to counsel's
judgments.'
"Strickland v. Washington, 466 U.S. at 690-91 …. '[T]rial
counsel is afforded broad authority in determining what
evidence will be offered in mitigation.' McWhorter v. State,
142 So. 3d [1195,] 1246 (Ala. Crim. App. 2011) (citation
55
CR-2023-0545
omitted)."
(C. 91.)
Byrd argues on appeal that "[t]he circuit court dismissed [his]
penalty and sentencing phase claims based on the fiction that trial
counsel's failures were strategic choices." (Byrd's brief, p. 76.) Byrd
asserts that "[t]his holding ignores the detailed allegations of the petition
and binding Supreme Court precedent. See, e.g., Wiggins [v. Smith], 539
U.S. [510,] 524 [(2003)]." (Byrd's brief, p. 76.) Byrd asserts that trial
counsel's investigation was so inadequate that "there were no 'choices'
that can be characterized as strategic or otherwise protected from
challenge." (Byrd's brief, p. 77 (quoting McWhorter v. State, 142 So. 3d
1195, 1246 (Ala. Crim. App. 2011).) Byrd also asserts that the circuit
court "necessarily and improperly rejected facts that it was required to
accept as true." (Byrd's brief, p. 77.)
We question whether Byrd's summary arguments on appeal comply
with Rule 28(a)(10), Ala. R. App. P. Regardless, we agree with the circuit
court's finding that, under the deferential Strickland standard, Byrd did
not plead facts showing that counsel's decisions were not a matter of
sound trial strategy. See, e.g., Stanley v. State, 335 So. 3d 1, 50 (Ala.
56
CR-2023-0545
Crim. App. 2020). We also agree that Byrd did not plead facts showing
that his counsel's decisions prejudiced him.
In Stanley, the circuit court summarily dismissed Stanley's claim
"that his trial counsel were ineffective for not adequately investigating
and presenting mitigating evidence at the penalty phase of the trial and
at the sentencing hearing before the trial court." 335 So. 3d at 54-55.
Addressing Stanley's claim on appeal, this Court stated:
" ' "[T]rial counsel's failure to investigate the
possibility of mitigating evidence [at all] is, per se,
deficient performance." Ex parte Land, 775 So. 2d
847, 853 (Ala. 2000), overruled on other grounds,
State v. Martin, 69 So. 3d 94 (Ala. 2011). However,
"counsel is not necessarily ineffective simply
because he does not present all possible mitigating
evidence." Pierce v. State, 851 So. 2d 558, 578 (Ala.
Crim. App. 1999), rev'd on other grounds, 851 So.
2d 606 (Ala. 2000). When the record reflects that
counsel presented mitigating evidence during the
penalty phase of the trial, as here, the question
becomes whether counsel's mitigation
investigation and counsel's decisions regarding the
presentation of mitigating evidence were
reasonable.
" ' " '[B]efore we can assess the
reasonableness of counsel's
investigatory efforts, we must first
determine the nature and extent of the
investigation that took place. ...' Lewis
v. Horn, 581 F.3d 92, 115 (3d Cir.
2009). Thus, '[a]lthough [the] claim is
57
CR-2023-0545
that his trial counsel should have done
something more, we [must] first look at
what the lawyer did in fact.' Chandler
v. United States, 218 F.3d 1305, 1320
(11th Cir. 2000)."
" 'Broadnax [v. State], 130 So. 3d [1232,] 1248
[(Ala. Crim. App. 2013)] ....'
"Reeves v. State, 226 So. 3d 711, 751 (Ala. Crim. App. 2016).
"As this Court explained in Woodward v. State, 276 So.
3d 713 (Ala. Crim. App. 2018):
" 'Whether trial counsel were ineffective for
not adequately investigating and presenting
mitigating evidence " 'turns upon various factors,
including the reasonableness of counsel's
investigation, the mitigation evidence that was
actually presented, and the mitigation evidence
that could have been presented.' " McMillan v.
State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017)
(quoting Commonwealth v. Simpson, 620 Pa. 60,
100, 66 A.3d 253, 277 (2013)).
" ' " '[W]hen, as here, counsel has
presented a meaningful concept of
mitigation, the existence of alternate or
additional mitigation theories does not
establish ineffective assistance.' State
v. Combs, 100 Ohio App. 3d 90, 105,
652 N.E.2d 205, 214 (1994). 'Most
capital appeals include an allegation
that additional witnesses could have
been called. However, the standard of
review on appeal is deficient
performance plus prejudice.' Malone v.
State, 168 P.3d 185, 234-35 (Okla.
58
CR-2023-0545
Crim. App. 2007)."
" 'State v. Gissendanner, 288 So. 3d 923, 965 (Ala.
Crim. App. 2015)[, rev'd on other grounds, Ex
parte Gissendanner, 288 So. 3d 1011 (Ala. 2019)].
"[C]ounsel does not necessarily render ineffective
assistance simply because he does not present all
possible mitigating evidence." Williams v. State,
783 So. 2d 108, 117 (Ala. Crim. App. 2000),
overruled on other grounds by Ex parte Taylor, 10
So. 3d 1075 (Ala. 2005).
" '... "[W]hen a defendant challenges a death
sentence such as the one at issue in this case, the
question is whether there is a reasonable
probability that, absent the errors, the sentencer—
including an appellate court, to the extent it
independently reweighs the evidence—would have
concluded that the balance of aggravating and
mitigating circumstances did not warrant death."
Strickland v. Washington, 466 U.S. 668, 695, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "To assess that
probability, we consider 'the totality of the
available mitigation evidence—both that adduced
at trial, and the evidence adduced in the habeas
proceeding'—and 'reweig[h] it against the
evidence in aggravation.' " Porter v. McCollum,
558 U.S. 30, 41, 130 S. Ct. 447, 175 L. Ed. 2d 398
(2009) (quoting Williams v. Taylor, 529 U.S. 362,
397-98, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000)).
We " 'must consider the strength of the evidence in
deciding whether the Strickland prejudice prong
has been satisfied.' " McWhorter v. State, 142 So.
3d 1195, 1231 (Ala. Crim. App. 2011) (quoting
Buehl v. Vaughn, 166 F.3d 163, 172 (3d Cir.
1999)).'
"276 So. 3d at 773-74."
59
CR-2023-0545
Stanley, 335 So. 3d at 55-56.
The record from Byrd's direct appeal shows that, at the penalty
phase, trial counsel presented three witnesses—Dr. Ackerson, Byrd's
aunt LaTonja McDonald, and Byrd. Dr. Ackerson testified that she had
reviewed records pertaining to Byrd. Those records
"included some psychological evaluations that were conducted
with Mr. Byrd previously. And these were under the auspice
of his school records. And the testing that was conducted
consisted of intellectual assessments, academic achievement
assessment. Also, some adaptive behavioral scales were
conducted to discern behavioral problems, and also some
other issues related to psychopathology and so forth. Also,
there were other—there's something entitled the Birmingham
High School Cumulative Record that was received, and also
some other results of some standardized achievement testing
that all students are given."
(Trial R. 1087-88.) Dr. Ackerson testified that she had reviewed the
records and had evaluated Byrd. She testified that Byrd had received
"special educational services" while in school. She testified that IQ
testing of Byrd when he was 14 years old showed an overall IQ of 65,
which, she said, was "a classification of extremely low" and was classified
as "mild mental retardation." (Trial R. 1088-89.) She testified that a
second IQ test, given when Byrd was 17 years old, showed a full-scale IQ
of 75—"[a]nd that particular score would be classified as borderline,
60
CR-2023-0545
which is … the next step up from the extremely low level." (Trial R. 1089.)
Dr. Ackerson testified that, just before trial, she had administered an IQ
test to Byrd—the same test given to him when he was 17 years old—and
that his full-scale IQ was 72. Consistent with her testimony at the Atkins
hearing, Dr. Ackerson testified about the "margin of error" with the IQ
tests and about the range for each of the testing results. (Trial R. 1090.)
Dr. Ackerson testified that the margin of error for Byrd's testing results
at age 17 and just before trial were within the "mental retardation
range." (Trial R. 1091.)
When asked about whether she had been "able to make a
determination as to what may [have] contribute[d] to Mr. Byrd's
intellectual functioning," Dr. Ackerson testified that "Mr. Byrd
discussed" with her his background:
"One of the things that he informed me is that he was a twin.
And he was also the second born of the twin. And sometimes
in twin births, one of the children may be compromised,
because a twin birth—any multiple birth can be difficult and
is at a higher risk for complication. A second born of a twin
tends to have, if there's going to be any complication, often
there will be some complication. So right off I found out that
even perhaps in utero he may have had some problems.
"I then was briefly informed—I confirmed something
with a family member that, No. 1, that he was a twin. And
this family member happened to be the other twin. And he
61
CR-2023-0545
informed me that his brother did suffer complications at the
time of birth.
"The other thing was consistent with perhaps some type
of birth trauma. Mr. Byrd himself described himself as being
a very hyper kid. And that is something that you will
sometimes see with children who have complications at birth
or in utero. It's that they might have attentional, and some
hyperactivity problems, with impulse control. And he
indicated that he was placed on some medications. In that
regard, that is another sign to me that would help explain why
his IQ was low. A child with attentional hyperactivity
problems often suffers in school. They can have a lot of
problems, and consequently, cannot learn as well. And that
may also [have] contribute[d]."
(Trial R. 1091-92.) Dr. Ackerson also testified about learning that Byrd's
mother had been murdered:
"Q. Did you find any other reasons why he perhaps may
have scored so low [on his IQ test in the seventh grade]? Were
there any other contributors that you found?
"A. Yes. When he was, I believe it was nine years of age,
in 1994, his mother was murdered. And he witnessed this
murder. He was there when she was killed. Apparently, it
stemmed over an argument with a neighbor. And his mother
was unexpectedly killed. Anytime that a child experiences a
trauma, especially if it's something to that level, before the
age of nine, that can impact brain development, because your
brain is not completely developed at that time. So any type of
significant trauma—and this certainly would constitute
significant trauma—could have also impacted on his brain
development, such that his intellectual functioning is, and
remains low.
"Q. So is it fair to say with the disadvantages that Mr.
62
CR-2023-0545
Byrd already exhibited, that this additional trauma may have
exacerbated and just caused him more problems?
"A. It could very well have, yes."
(Trial R. 1092-93.) Dr. Ackerson testified that "somebody with a 72 IQ"
would not "likely … be a leader, especially if it's complex behavior." (Trial
R. 1096.) She opined:
"People with 72 IQs are likely going to have problems within
the social arena having trouble understanding things
sometimes within the social situation, also within, you know,
intellectual situations, such as school. So I think that they are
more likely to be a follower."
(Trial R. 1096-97.)
On cross-examination, Dr. Ackerson admitted that the range of
results for the IQ tests could "be higher" than the full-scale result. She
acknowledged that missing 34 days of school—as the school records
showed for Byrd during the 11th grade—"absolutely" could have affected
his "ability to learn." (Trial R. 1094, 1099.) She noted that, although she
could not determine which courses were "special education" or "regular"
courses, Byrd had received a 91 in science, an 85 in English, and a 91 in
social studies, as well as some bad grades. (Trial R. 1098.) Dr. Ackerson
also testified that she did not think that Byrd "was malingering" during
the IQ test she had administered to him. (Trial R. 1097.)
63
CR-2023-0545
McDonald testified that Byrd was her nephew—the son of her older
sister—and that she had "raised [him] after his mother was killed." (Trial
R. 1101.) McDonald testified about when her sister was killed:
"On August the 31st, 1994, I received a call from my
mother, crying, and she asked me to come to her home. And
she said, 'Come quick, come quick, a lady just killed your
sister.' And it was hard for me to believe, because I had just—
they had just left my house. So when I got there, it was raining
very hard, so hard you couldn't see. People everywhere. It was
just unreal.
"Q. Where was Roderick?
"A. When I got there the children were standing outside
in the rain, holding each other. It was the smallest that was—
because I had the older one with me. And they were holding
each other, crying, saying, 'Don't let them take us, Auntie.
Don't let them take us.' And I stated, 'Who—who trying to
take y'all? Just don't let them take us.' I say, 'I got y'all. Don't
worry.'
"Q. Now, how old was Roderick at that time?
"A. He was eight, getting ready to turn nine, because his
birthday is in September.
"Q. Okay. Now, he has a twin brother?
"A. Yes.
"Q. Okay. And how long did Roderick live with you?
"A. Roderick lived with me from 1994 up until he became
17."
64
CR-2023-0545
(Trial R. 1101-02.) McDonald testified that Byrd was not
"a good student, because he couldn't function at a normal
level. He couldn't do what normal children his age could do.
He couldn't comprehend. So in seeing that, I went to the
school and asked them to test Roderick and his brother.
"….
"… They ran several tests on them. And in the process
of that, they came up and they called me in and said, Ms.
McDonald, we find that Roderick and Ronald are mentally
retarded, which means they have a learning disability. They
can't learn at the level that kids normally their age. Also, they
put them in counseling through the school, because they were
dealing with a lot of nightmares and hurt and pain from
witnessing their mother's death. And I also had them in
counseling and we went as a family, because it hurt all of us.
It affected everybody."
(Trial R. 1102-03.)
McDonald asked the jury to spare Byrd's life:
"I'm asking that you all give Roderick life without parole
because Roderick is not a leader. He can't—he's not capable of
this. He can't function on something like this. He's not
capable. And I'm asking you to please consider that, please.
"Q. You do understand that three people were killed,
don't you?
"A. Yes, I do. And I have—my deepest sympathy go to
the family. Because I know what everybody's out here feeling,
because I felt this and I'm feeling it now. Because it all
happened in this same courtroom. So I know. I have been on
both sides. I know what it feel like."
65
CR-2023-0545
(Trial R. 1104.)
Byrd testified that he had a son who was "[t]hree-and-a-half years
old." (Trial R. 1106.) When asked about why the jury should spare his
life, Byrd testified:
"Because I never intended for anyone to get killed on
Thanksgiving Day. And I truly am sorry to the victims'
families, for their loved ones. Because I know—I know what
they're going through right now. And I ask that they spare my
life. Because if there was any thought in my mind that
Brandon Mitchell was going to kill them people, I would have
never went with him.
"Q. Okay. All right. You do realize that you were wrong
for going into that hotel? You understand that?
"A. Yes, sir.
"Q. And you understand that three lives were taken
because you went in there?
"A. Yes, sir.
"Q. And you're asking this jury for life without parole?
"A. Yes, sir."
(Trial R. 1106.)
In closing argument to the jury, defense counsel acknowledged that
the case—hearing the evidence, including testimony from the victims'
families, from Byrd, and from Byrd's family—had been "tough ... to sit
66
CR-2023-0545
through." (Trial R. 1113.) Counsel then stated:
"I thought a little bit about something I was looking at not too
long ago in making the process of bricks. You know, the bricks
they put around houses? And they go through this process
where they get the proper ingredients. They get the sand and
the mud and the water and the heat. And they have a mold.
And they put these ingredients in this mold and heat it up and
then we come out with these bricks. And through this process,
some of these bricks come out perfect and some come out not
so perfect. I submit to you, ladies and gentlemen, that
Roderick Byrd is like one of these not-so-perfect bricks.
"He had complications early in life. He's had some
intellectual functioning problems as a result of these early
complications. We've heard testimony that he's had IQ
levels—full scale IQ levels—that were in the mental
retardation range as early as the seventh grade. Some of his
problems may have been exacerbated by Roderick witnessing
his own mother's death. He's one of these bricks that's not so
perfect.
"And what do we do when they put all these bricks
together? They put them all in these big bundles and ship
them to the site where they prepare to brick homes or
buildings or businesses. And they take the bricks and they put
the perfect bricks on the outside of the house, don't they, so
everybody can see them? Do they throw the imperfect bricks
away? Do they destroy them? No. They use those and they
place those on the inside of the houses that are being bricked
so nobody can see them. So nobody can ever see them. But
they have the perfect bricks facing on the outside so the world
can see.
"So what we're asking you to do, ladies and gentlemen,
is to consider Roderick to be like one of those imperfect bricks.
Just put him on the back side of the house behind, you know,
the perfect bricks so nobody will ever see him again. He'll be
67
CR-2023-0545
in an 8 by 8, or a 10 by 8 by 10 cell, whatever it is. And the
world will never ever be able to see Roderick again.
"Roderick is a 23-year-old man with some intellectual
functioning problems. We've heard testimony that his IQ level
is low. We've heard testimony that—again, that he
experienced his own mother's death. And I want you to think
about that. I think this is why we heard through testimony,
through evidence earlier in the trial Roderick was shaking
and crying. I'm sure that brought him back to the time that
he witnessed his mother being shot. And this would make me
think—it ought to make you think that Roderick could never
shoot anybody. He made a bad decision one morning. Instead
of getting up, going to work, he made a foolish decision to ride
with Brandon Mitchell and Jonathan Floyd.
"The judge read an instruction to you earlier during the
guilt phase of the trial. Roderick has no prior criminal history.
He made one bad, foolish decision here. He got up and he went
with Roderick—with Brandon Mitchell and Jonathan Floyd
and a robbery went bad.
"So we ask—you've heard all the evidence. You know
this case. We just simply ask that you consider all that you've
heard, all that you've learned throughout this trial, all that's
been presented to you. And I'm asking you to consider
Roderick as one of those bricks that didn't come out perfect.
Spare his life and put him away so that he can't ever—so
society will never see Roderick Byrd again. That's a sufficient
punishment for this decision that he made on Thanksgiving
Day in 2005."
(Trial R. 1113-16.)
At his sentencing hearing, Byrd made the following statement to
the court:
68
CR-2023-0545
"Just want to say that I'm sorry for putting my family
through this, for putting myself in that predicament and
putting my family—taking them through this. And I also
want to say I'm sorry to the victims' families. And I ask that
God just heal them through their hurt and pain they going
through. And I just ask that the Court just have mercy on me
right now."
(Trial R. 1162.)
In its order sentencing Byrd to death, the trial court found that
three aggravating circumstances existed: (1) that Byrd committed the
capital offenses while he "was engaged or was an accomplice in the
commission of, or an attempt to commit, or flight after committing, or
attempting to commit … robbery"; (2) that the capital offenses were
"especially heinous, atrocious, or cruel compared to other capital
offenses"; and (3) that Byrd "intentionally caused the death of two or
more persons by one act or pursuant to one scheme or course of conduct."
(Trial C. 33-34.) See § 13A-5-49, Ala. Code 1975.11 The trial court found
that two statutory mitigating circumstances existed: (1) that Byrd had
11Section 13A-5-49, Ala. Code 1975, has been amended since Byrd
committed the offenses, but the relevant subsections are unchanged in
the current version of § 13A-5-49. See Act No. 99-403, Ala. Acts 1999; see
Minnifield v. State, 941 So. 2d 1000, 1001 (Ala. Crim. App. 2005) ("It is
well settled that the law in effect at the time of the commission of the
offense controls the prosecution.").
69
CR-2023-0545
no significant criminal history and (2) that Byrd was only 22 years old
when he committed the offenses. (Trial C. 34-36.) See § 13A-5-51, Ala.
Code 1975.
The trial court expressly found that several statutory mitigating
circumstances did not exist:
"2. Whether the capital offense was committed while
[Byrd] was under the influence of extreme mental or
emotional disturbance—No, this mitigating circumstance
does not apply. Although [Byrd] has a low IQ, there is no
evidence of an extreme mental or emotional disturbance.
[Byrd] was able to function well in society and any mental
deficiencies he may have had do not appear to have influenced
his decision on the date in question. …
"….
"4. Whether [Byrd] was an accomplice in the capital
offense committed by another person, and his participation
was relatively minor—No, this mitigating circumstance does
not apply. Although [Byrd] denied shooting anyone himself,
testimony at trial established that Kim Olney and Dorothy
Smith were shot with the same gun, and that John
Aylesworth was shot with a different gun. Roderick Byrd also
admitted in his statement to the police that he was in
possession of a gun and that he held the gun on John
Aylesworth (who was referred to as the 'white guy'). Other
than Byrd's denial that he shot anyone, the evidence indicates
that Roderick Byrd shot John Aylesworth and Brandon
Mitchell shot Kim Olney and Dorothy Smith. In his
statement, Mr. Byrd initially said that Brandon Mitchell had
two guns, but he later said that Mitchell only had one gun.
"Even if Byrd did not personally shoot any of the
70
CR-2023-0545
individuals, his participation was not sufficiently 'minor' to
qualify under this section. He went into the hotel with a gun.
He admittedly held a gun on at least one victim and forced
that person to stay until the robbery was done or until that
person, John Aylesworth, had been shot and killed. As the
officers indicated while interviewing Byrd, Mr. Aylesworth
could have run out and possibly escaped if not for Roderick
Byrd. It should be noted that Byrd did not deny this allegation
during his interview. Although Brandon Mitchell should be
regarded as the central figure in this robbery and homicide,
Roderick Byrd also played a primary role.
"5. Whether [Byrd] acted under extreme duress or under
the substantial domination of another person—No, this
mitigating circumstance does not apply. Although Brandon
Mitchell was clearly the leader of the group that committed
these offenses, there was no evidence that Roderick Byrd was
forced into any actions that he took. He admitted to readily
agreeing to commit the robbery. He had his own gun, and
there is no evidence that Mitchell or Jonathan Floyd
threatened Byrd to stay at the scene. After the shooting, Byrd
left right before Mitchell, but he then waited to get a backpack
from Mitchell with proceeds from the robbery. Byrd's
statement to the police indicates that Brandon Mitchell told
Byrd some things that he should do during the robbery, but
those instructions did not extend to the level of 'extreme
duress' or 'substantial domination.'
"6. Whether the capacity of [Byrd] to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired—No, this
mitigating circumstance does not apply. Although [Byrd's]
mental condition does qualify as a mitigating circumstance
under [the] catch all provision [of § 13A-5-52, Ala. Code 1975],
[Byrd] does not qualify under this section. Even [Byrd's]
expert, Dr. Kimberly Ackerson, did not indicate that this
would apply. [Byrd] clearly understood the wrongfulness of
his acts. He wore gloves to cover up his crime. He hid the
71
CR-2023-0545
backpack he took from the hotel to avoid detection, and he
threw away the clothes he wore during the robbery and killing
because 'they were used in a robbery.' (quote from [Byrd's]
statement to police). These facts, which were proven at trial,
clearly establish that [Byrd] was trying to cover-up his
involvement in the offense. [Byrd] also left town after the
incident, and when he was arrested he lied to the police about
the level of his involvement so as to mitigate his exposure.
This Court finds that Roderick Byrd was fully capable of
appreciating the criminality of his conduct and capable of
conforming his conduct to the law if he had wanted to do so."
(Trial C. 35-36.)
Regarding non-statutory mitigating circumstances, the trial court
found:
"1. The childhood trauma of witnessing his mother being
killed. Although [Byrd's] testimony did not include
information regarding this incident, [Byrd's] aunt testified
that when she arrived at the scene of her sister's death
Roderick Byrd and the other children were at the scene
holding each other. LaTonja McDonald's testimony indicated
that [Byrd] was eight or nine years old at the time of the
incident, and the record reflects that [Byrd] may have been
ten years old when his mother was killed. This was clearly a
very traumatic incident which would have adversely affected
any child. This also caused [Byrd] to be raised by someone
other than his natural parents.
"2. Roderick Byrd's mental condition during his youth
and at the time of the offense should also be regarded as a
mitigating circumstance. The Court finds [Byrd] had a low IQ
as a child, and this made it more difficult for him to learn in
school and socialize. He also had an apparent reading
disability. [Byrd's] below average intelligence continued into
adulthood, and it could have caused Byrd to be a 'follower,' as
72
CR-2023-0545
his sister indicated. Roderick Byrd may not have been a leader
throughout his lifetime or even on the date when the murders
occurred, but he was certainly capable of making his own
decisions. [Byrd's] IQ is approximately 72. This low IQ and
the other testimony presented regarding Roderick Byrd's
mental condition is sufficient to qualify as a mitigating
circumstance under § 13A-5-52, Code of Alabama (1975). This
is true even though the record reflects that [Byrd] was not in
the mental retardation range."
(Trial C. 36; see also Trial R. 1191-93 (finding, in part, that Byrd's low IQ
is a significant mitigating circumstance).)
On appeal, Byrd discounts his trial counsel's efforts—asserting
that, "[a]fter their appointment in April 2006, trial counsel basically
ignored mitigation for six months." (Byrd's brief, p. 78.) He asserts that
counsel should have retained a presentence investigator and that counsel
"failed to take any steps to develop" evidence it learned from Byrd's
family members—"that [Byrd's] mother was a drug addict, that he had
almost died at birth, that he had been in special education and that his
family considered him to be 'slow." (Byrd's brief, p. 79.) Byrd asserts that,
in April 2007, counsel learned
"additional details about [Byrd's] difficulties in school and his
need for counseling after his mother's murder. Despite this,
counsel waited another month to obtain a school records
release and then …. [t]rial counsel delegated the task of
acquiring the school records to Byrd's aunt and did not receive
any of the[] records until the eve of trial when there was no
73
CR-2023-0545
time to review them or put them in context with other records
and collateral materials, such as medical, DHR and family
court records and other evidence (including interviews of
teachers, childhood friends and family members), that are
basic to any reasonable mitigation investigation."
(Byrd's brief, p. 80.)
Byrd criticizes the "imperfect brick" metaphor that counsel used in
closing, arguing that it "actively harmed [Byrd's] chances at receiving
mercy by suggesting that he was not only defective but dispensable as
well." (Byrd's brief, p. 81.)
Byrd asserts that "a reasonable investigation would have produced
a wealth of mitigation evidence." (Byrd's brief, p. 83.) Byrd argues that
counsel should have reviewed (or hired an investigator to review) medical
records, DHR records, and family and school records. He asserts that,
had counsel done so, counsel would have learned about Byrd's "family's
extensive history of mental illness and substance abuse, the impact of his
mother's substance abuse on his brain development in utero and the
challenges he faced as an intellectually disabled child and adolescent
without parental or other support." (Byrd's brief, pp. 83-84.) Byrd's brief
recounts allegations about his mother's bipolar disorder, suicide attempt,
drug addiction, use of alcohol during her pregnancy, and frequent run-
74
CR-2023-0545
ins with DHR; allegations about his biological father's alcoholism,
intellectual disability, and imprisonment in 2005 for raping and
impregnating a 13-year-old girl; allegations about his siblings' mental
illnesses and intellectual disabilities; allegations about Byrd's suffering
from PTSD from witnessing his mother's murder; allegations about
McDonald's inability to give Byrd "the full attention he required as a
teenager"; allegations about Byrd being "essentially homeless" during his
adolescence; allegations about teachers and friends who "remember him
fondly" and would have told counsel that Byrd "was a good kid who did
not cause them any problems"; and allegations about Byrd staying in
high school until he was 20 years old but never passing the high-school
exit exam or the written test to get a driver's license (Byrd's brief, pp. 84-
88.) Byrd asserts further that "expert testimony was necessary to explain
and draw conclusions about the social, emotional, psychological and
cognitive impact of [Byrd's] traumatic childhood." (Byrd's brief, p. 90.)
Byrd characterizes Dr. Ackerson's testimony as inadequate and mere
"generalizations and speculation." (Byrd's brief, p. 92.)
Byrd also asserts that counsel should have done "further mitigation
work in the … eight weeks" between the jury's recommendation and the
75
CR-2023-0545
sentencing hearing. (Byrd's brief, p. 81.) He asserts that counsel should
have called witnesses and presented evidence at the sentencing
hearing.12 (Byrd's brief, p. 82.)
Byrd argues that "[t]he mitigation evidence that trial counsel failed
to gather, prepare and present was not merely 'cumulative' to the other
evidence that they actually presented." (Byrd's brief, p. 94.) We disagree.
In Stanley, this Court noted:
"The bulk of the evidence Stanley alleged in his petition
should have been presented at the penalty phase of his trial
was, in fact, presented. As this Court explained in Brownfield
v. State, 266 So. 3d 777 (Ala. Crim. App. 2017):
" ' " ' "[T]he failure to present
additional mitigating evidence that is
merely cumulative of that already
presented does not rise to the level of a
constitutional violation." Nields v.
Bradshaw, 482 F.3d 442, 454 (6th Cir.
2007) (quoting Broom v. Mitchell, 441
12In State v. Mitchell, 377 So. 3d 94 (Ala. Crim. App. 2022), this
Court rejected Brandon Mitchell's claim that his counsel were ineffective
for not presenting additional mitigation evidence at the sentencing
hearing before the judge. As a part of our rejection of that claim, we noted
that precedent existing at the time of Mitchell's trial did not permit the
introduction of evidence at the sentencing hearing—trial counsel thus
could not have been ineffective for failing to present more mitigation
evidence during the sentencing hearing before the trial court. 377 So. 3d
at 129-30. As explained in State v. Mitchell, Byrd's trial counsel likewise
could not have been ineffective for failing to introduce more evidence at
the separate sentencing hearing.
76
CR-2023-0545
F.3d 392, 410 (6th Cir. 2006)).' Eley v.
Bagley, 604 F.3d 958, 968 (6th Cir.
2010). 'This Court has previously
refused to allow the omission of
cumulative testimony to amount to
ineffective assistance of counsel.'
United States v. Harris, 408 F.3d 186,
191 (5th Cir. 2005). 'Although as an
afterthought this [witness] provided a
more detailed account with regard to
[mitigating evidence], this Court has
held that even if alternate witnesses
could provide more detailed testimony,
trial counsel is not ineffective for
failing to present cumulative evidence.'
Darling v. State, 966 So. 2d 366, 377
(Fla. 2007)."
" 'Daniel v. State, 86 So. 3d 405, 429-30 (Ala. Crim.
App. 2011).
" ' " '[I]n order to establish
prejudice, the new evidence that a
habeas petitioner presents must differ
in a substantial way—in strength and
subject matter—from the evidence
actually presented at sentencing.' Hill
v. Mitchell, 400 F.3d 308, 319 (6th
Cir.), cert. denied, 546 U.S. 1039, 126
S. Ct. 744, 163 L. Ed. 2d 582 (2005). In
other cases, we have found prejudice
because the new mitigating evidence is
'different from and much stronger than
the evidence presented on direct
appeal,' 'much more extensive,
powerful, and corroborated,' and
'sufficiently different and weighty.'
Goodwin v. Johnson, 632 F.3d 301, 328,
77
CR-2023-0545
331 (6th Cir. 2011). We have also based
our assessment on 'the volume and
compelling nature of th[e new]
evidence.' Morales v. Mitchell, 507 F.3d
916, 935 (6th Cir. 2007). If the
testimony 'would have added nothing
of value,' then its absence was not
prejudicial. [Bobby v.] Van Hook, [558
U.S. 4, 12,] 130 S. Ct. [13,] 19, 175 L.
Ed. 2d 255 [(2009)]. In short,
'cumulative mitigation evidence' will
not suffice. Landrum v. Mitchell, 625
F.3d 905, 930 (6th Cir. 2010), petition
for cert. filed (Apr. 4, 2011) (10-9911)."
" 'Foust v. Houk, 655 F.3d 524, 539 (6th Cir. 2011).
" '[A] claim of ineffective assistance of counsel for
failing to investigate and present mitigation
evidence will not be sustained where the jury was
aware of most aspects of the mitigation evidence
that the defendant argues should have been
presented.' " Walker v. State, 194 So. 3d 253, 288
(Ala. Crim. App. 2015) (quoting Frances v. State,
143 So. 3d 340, 356 (Fla. 2014)).'
"266 So. 3d at 810."
335 So. 3d at 60-61. This Court in Stanley held:
"Here, the jury and the trial court were aware of most
aspects of the mitigating evidence Stanley alleged in his
petition should have been presented. ' "[T]he notion that the
result could have been different if only [counsel] had put on
more than the ... witnesses he did, or called expert witnesses
to bolster his case, is fanciful." ' Stallworth v. State, 171 So. 3d
53, 80 (Ala. Crim. App. 2013) (quoting Wong v. Belmontes, 558
U.S. 15, 28, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009)).
Moreover, the additional evidence Stanley identified in his
78
CR-2023-0545
petition that was not presented at his trial was not so strong
as to create a reasonable probability that the outcome of the
trial would have been different had the evidence been
presented. We have reweighed the evidence in aggravation
against the totality of the evidence in mitigation, both that
presented at trial and that pleaded in Stanley's petition, and
we have no trouble concluding that the additional mitigating
evidence would not have altered the balance of aggravating
circumstances and mitigating circumstances in this case. This
is so even assuming that the additional mitigating evidence
would have swayed more of, or even all, the jurors to vote for
life imprisonment without the possibility of parole. In light of
the strength of the three aggravating circumstances and the
relative weakness of the totality of the mitigating evidence,
the additional weight to be afforded a unanimous jury
recommendation of life imprisonment without the possibility
of parole would not have altered the balance of aggravating
and mitigating circumstances. Therefore, trial counsel were
not ineffective in this regard, and the circuit court properly
summarily dismissed this claim of ineffective assistance of
counsel."
335 So. 3d at 61. Under that same analysis, we reach the same conclusion
here that this Court reached in Stanley. Byrd's counsel were not
ineffective at the penalty phase, and Byrd is due no relief on this issue.
CONCLUSION
The judgment of the circuit court is affirmed.
AFFIRMED.
Windom, P.J., concurs. Kellum, J., concurs in the result. Cole and
Anderson, JJ., recuse themselves.
79
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