Byrd v. Johnson

Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Russell and Koontz, S.JJ.

MARQUIS DEVON BYRD
OPINION BY
v. Record No. 101289 SENIOR JUSTICE CHARLES S. RUSSELL
April 21, 2011
GENE M. JOHNSON, DIRECTOR OF THE
VIRGINIA DEPARTMENT OF CORRECTIONS

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Nolan B. Dawkins, Judge

This is an appeal from an order dismissing a petition for

habeas corpus. It presents questions whether the petitioner

was prejudiced because (a) his trial counsel failed to renew

his motion to strike the evidence at the conclusion of all the

evidence, and (b) his counsel at sentencing failed to obtain a

ruling on his motion to set aside the verdict. We decide both

questions in the light of the second (“prejudice”) prong of

Strickland v. Washington, 466 U.S. 668, 687, 697 (1984).

Proceedings

Marquis Devon Byrd (the petitioner) was indicted for the

first-degree murder of Al-Rahn Powell, aggravated malicious

wounding of Dennis Wise and use of a firearm in both offenses.

On November 13-15, 2006, at a jury trial in the Circuit Court

of the City of Alexandria he was convicted of the second-

degree murder of Powell, the unlawful wounding of Wise and use

of a firearm in the murder case. He was acquitted of the

firearm charge in the wounding case.
 At the close of the Commonwealth’s evidence, defense

counsel made a motion to strike, which the court denied. At

the close of all the evidence, defense counsel failed to renew

the motion to strike. Petitioner’s trial counsel was given

leave to withdraw from the case and the petitioner retained

substitute counsel to represent him with respect to

sentencing. Substitute counsel filed a motion to set aside

the verdict but did not argue that motion before the court and

never obtained a ruling on it. In accordance with the jury’s

verdict, the court sentenced the petitioner to 33 years'

imprisonment for the three offenses of which he had been

convicted, with 13 years suspended.

The Court of Appeals, citing McQuinn v. Commonwealth, 20

Va. App. 753, 757, 460 S.E.2d 624, 626 (1995), and McGee v.

Commonwealth, 4 Va. App. 317, 321, 357 S.E.2d 738, 739-40

(1987), and pursuant to Rule 5A:18, dismissed petitioner's

appeal on the ground that the issue of the sufficiency of the

evidence had not been preserved by either a renewal of the

motion to strike at the conclusion of all the evidence or by a

motion to set aside the verdict. Byrd v. Commonwealth, Record

No. 1766-07-4, slip op. at 1 (December 28, 2007). The

petitioner did not request a review by a panel but filed a

petition for appeal in this Court, which was denied by an

order entered on May 7, 2008.

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 On May 6, 2009, petitioner filed this petition for a writ

of habeas corpus in the circuit court, alleging that he had

been denied his right to effective assistance of counsel at

both trial and sentencing. The Attorney General filed a

motion to dismiss the petition. The court determined that

recorded matters furnished a sufficient basis to decide the

issues without an evidentiary hearing. By letter opinion

entered on February 18, 2010, the court held that petitioner

had met the requirements of the first (“performance”) prong of

Strickland by showing that the performance of both attorneys

was defective, resulting in the denial of his direct appeal.

The court then turned to consideration of the second

(“prejudice”) prong of Strickland and concluded that the

petitioner had not shown that he suffered prejudice by reason

of counsels' defective performance because the record

demonstrated that, within a reasonable degree of probability,

the outcome of the case would not have been different in the

absence of the defective performance by counsel. We awarded

petitioner an appeal, limited to the circuit court’s

application of the second prong of Strickland.

The Criminal Trial

The question whether, within a reasonable degree of

probability, the outcome of the case would have been different

in the absence of counsels’ defective performance can only be

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answered, in the procedural posture of this case, by

determining whether the petitioner would have had a reasonable

prospect of success on appeal if the appellate courts had been

able to reach and consider his contention that the evidence

was insufficient to support the verdict, that being the sole

question presented on direct appeal. 1 To answer that question

we must consider the record in the underlying criminal trial.

The evidence was in sharp conflict. In accordance with

familiar principles, we will state its pertinent parts in the

light most favorable to the Commonwealth, the prevailing party

at trial. See, e.g., Preston v. Commonwealth, 281 Va. 52, 57,

704 S.E.2d 127, 129 (2011).

The petitioner was 17 years old at the time of trial.

He had a history of suspensions from school for fighting. He

testified that he had been bullied and had begun to carry

firearms for self-protection, although he knew it was unlawful

to do so. He testified that on one prior occasion, when two

individuals approached him intending to assault him, he

1
In this appeal, the petitioner presents only the
question whether he was prejudiced by counsels' defective
performance in failing to preserve the issue of the
sufficiency of the evidence for his direct appeal. We
therefore confine our consideration to that issue. Cf.
Elliott v. Warden, 274 Va. 598, 614, 652 S.E.2d 465, 480
(2007) (both the "performance" and "prejudice" prongs of
Strickland were in issue and the petitioner contended that
counsel's errors were prejudicial at trial as well as on
appeal).

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brandished a Glock pistol, and fired it into the air. He

served 21 days in juvenile detention for that offense.

About two years before the present offense, the

petitioner had an altercation with Dennis Wise, one of the

victims in the present case. Without any explanation, the

petitioner pointed a BB gun at Wise, who then punched him.

Because of the petitioner’s fights at school, his mother moved

the family out of Alexandria to Fairfax County. Nevertheless,

the petitioner admitted that he continued to return to

Alexandria, making repeated visits to the Cora Kelly

Recreation Center.

On July 29, 2006, Mrs. Byrd drove her sons Marquis, the

petitioner, and his 14-year-old brother, Malik Byrd (Malik),

to Alexandria. She dropped them off at a Metro station where

they could catch a bus to take them to the recreation center

where, they told her, they intended to play basketball. The

petitioner was carrying in his waistband, concealed from his

mother, two loaded firearms, a .45 caliber auto-loading pistol

and a .32 caliber revolver that the petitioner had just

obtained that morning. At the Metro station, the petitioner

surreptitiously handed the .32 caliber revolver to Malik and

told him "I'll get it back later when we get to where we [are]

going." The petitioner testified that he carried his guns

that day "because anything could happen."

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 As the brothers walked along Mount Vernon Avenue, Dennis

Wise, then 18 years of age, and 19-year-old Al-Rahn Powell,

were riding their bicycles, traveling the same street in the

same direction. Neither of the Byrds knew Powell but the

petitioner knew Wise from their previous encounter, although

they had had no contact for two years. As the bicyclists

approached the Byrds, the petitioner silently raised his shirt

to display the handle of his pistol. Wise didn’t think it was

a real gun. Both bicyclists were unarmed. The petitioner

“jogged” across the street and entered a barbershop. Mailk

followed him but remained in the doorway of the shop. Wise

followed slowly and dismounted. The petitioner reappeared at

the door of the shop, pointing his pistol straight ahead.

Without speaking, the petitioner fired one shot. Wise seized

the petitioner from behind, pinning his arms to keep him from

firing any more shots. The two fell to the street, struggling

for possession of the gun. During the struggle, the

petitioner shot Wise in both legs, severely injuring him.

While this was taking place, Malik shot Powell in the side of

the head with the .32 caliber revolver. Surgeons later

removed a .32 caliber projectile from Powell’s brain, but he

died of his wound 11 days later. The parties stipulate that

Malik fired the fatal shot.

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 After the shootings, the brothers fled the scene

together, running through an alley. Malik threw the .32

caliber revolver into a trash can but he was seen by a witness

who led the police to it. Several witnesses observed these

events and testified. One of them was a customer in a dry-

cleaning establishment adjacent to the barbershop. He saw two

young men “tussling” on the street and heard shots. He looked

out and saw two individuals holding two guns, both “pointed in

the same general direction, going up the street.” He

described the guns, one as a revolver, the other as a

“squarish, more modern type weapon.” After the shootings, the

witness went outside and saw the two victims lying in the

street but the shooters had fled the scene. Another witness,

however, knew both Byrd brothers and identified them.

Analysis

As noted above, the jury convicted the petitioner of

second-degree murder as to Powell, not the first-degree murder

with which he had been charged. The jury convicted the

petitioner of the use of a firearm in Powell’s murder, but

acquitted him of the firearm count with respect to the

wounding of Wise. The jury convicted him of the unlawful

wounding, not the malicious wounding of Wise. Those verdicts

are consistent with conclusions by a unanimous jury that (1)

Powell’s killing was malicious but had not been premeditated,

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and (2) that the petitioner and Malik had acted in concert

with regard to Powell’s murder or that the petitioner had

participated in some way in bringing it about. 2

The jury was entitled to conclude from the evidence that

the petitioner and his brother were returning to the area of

the petitioner’s earlier fights “looking for trouble;” that

the petitioner and his brother acted in concert with a shared

intent; that the petitioner armed his younger brother to

further their purpose; that the petitioner recognized Wise as

an enemy and that the two brothers shared an intent to harm or

at least intimidate him; and that the petitioner, while not

necessarily intending to kill Powell, nevertheless

participated in bringing the murder about by arming his

brother with a deadly weapon, initiating the fight and firing

the first shot. Those conclusions would comport with the

following instructions given to the jury:

In order to find Marquis Byrd guilty of second
degree murder, the Commonwealth must prove beyond a
reasonable doubt each of the following elements of
that crime. One, that Al-Rahn Powell was killed;
and two that the killing was malicious; and three
that Marquis Byrd was a principal in the second
degree to the killing. If you find from the
evidence the Commonwealth has proved beyond a
reasonable doubt each of the above elements of the

2
The petitioner does not contend that counsel were
ineffective in representing him on the wounding and firearms
charges. Our consideration is therefore confined to the
murder charge.

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 offense as charged, then you shall find Marquis Byrd
guilty of second degree murder . . . .

A principal in the first degree is a person who
actually commits the crime. A principal in the
second degree is a person who is present and assists
by helping in the commission of the crime. It must
be shown that he intended by his word, gestures,
signals, or action to encourage, advise, urge, or
help the person who actually committed the crime, or
he shares a criminal intent of the person who
actually committed the crime.

Presen[ce] and consent alone are not sufficient
to make a person a principal in the second degree.
A principal in the second degree is liable for the
same punishment as the person who actually commits
the crime.

. . . .

If there is a concert of action with a resulting
crime one of its incidental probable consequences,
then whether such crime was originally contemplated
or not, all who participated in any way in bringing
it about are equally answerable and bound by the
acts of every other person connected with the
consummation of such resulting crime. You may infer
that every person intends the natural and probable
consequences of his acts.

The second prong of Strickland requires a habeas corpus

petitioner to "affirmatively prove prejudice" and to show that

counsel's defective performance "actually had an adverse

effect on the defense." Strickland, 466 U.S. at 693. The

Supreme Court has characterized that requirement as "highly

demanding," and we have similarly described it as a "heavy

burden." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986);

Strickler v. Murray, 249 Va. 120, 128-29, 452 S.E.2d 648, 652

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(1995). That burden requires the petitioner to establish a

"reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694.

Conclusion

The jury was entitled to accept the Commonwealth's

evidence and to reject the version of events presented by the

defendant at trial. The version of events presented to the

jury by the Commonwealth's evidence, considered in the light

of the instructions given by the court, fully supports the

verdict. If counsel had performed without any professional

errors and the petitioner's direct appeal had been available

for review in the appellate courts free of any procedural bar,

there is no reasonable probability that a different result

would have been reached. Accordingly, we will affirm the

judgment of the circuit court.

Affirmed.

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