White; age 43 at crime (DOB 11-3-1956): murder (she hired killer)
of white male (her husband) age 56 in Tishomingo County on
6-4-1999; sentenced on 11-18-2000.
Condemned woman loses bid for retrial
By By Jack Elliott Jr. - The Associated Press
Byrom, the only woman in Mississippi sentenced to die, lost an
appeal Thursday of her conviction for killing her husband and for
recruiting her son in the plot.
Edward Byrom Sr., an
electrician, was shot June 4, 1999, with a World War II weapon
that had belonged to his father.
In a rare move at her 2000
trial, Michelle Byrom asked Circuit Judge Thomas Gardner, instead
of the jury, to decide whether she should serve life in prison or
be put to death. Gardner sentenced her to death.
Prosecutors said Byrom
killed her husband of 20 years for money.
Defense attorneys argued she
had been physically abused as a child and by her husband.
Edward Byrom Jr. testified
against his mother during the trial as part of a plea-bargain
arrangement. He later pleaded guilty to several charges in the
murder-for-hire scheme, including conspiracy to commit murder.
Gardner sentenced him to 50 years in prison with 20 years
Prosecutors claimed Michelle
Byrom planned to pay a hit man $15,000 with proceeds from the
estate, which was estimated at more than $350,000.
The Supreme Court, in a 5-3
ruling Thursday, said none of the errors cited by Michelle Byrom
justified overturning her death sentence.
However, Justice George C.
Carlson, writing in the majority opinion for the court, said
Michelle Byrom's trial was not error-free.
"We have found in this case
that, during this trial, there were instances of error committed
by the trial court," Carlson wrote. "With the numerous difficult
decisions — pretrial, trial, and post-trial — which the learned
circuit judge was called upon to make, many of which had to be
made with only a few seconds of deliberation, errors will be made.
That is a fact of life.
"However, we have never held
that a criminal defendant was entitled to a perfect trial, even
with our heightened scrutiny in death-penalty cases. A perfect
trial is simply impossible.
In a dissent, Chief Justice Ed
Pittman Jr. and two other justices, said there were errors that
justified a new trial, including the trial judge's decision to
exclude from evidence a pornographic home video and some jailhouse
The Supreme Court of Mississippi
Michelle BYROM v. STATE of Mississippi.
January 19, 2006
Louwlynn Vanzetta Williams, Robert M. Ryan,
Jackson, William J. Clayton, Batesville, attorneys for
appellant.Office of the Attorney General by Marvin L. White, Jr.,
attorneys for appellee.
¶ 1. Michelle Byrom was convicted by a
Tishomingo County jury of capital murder in the shooting death of
her husband, Edward Byrom, Sr. After the jury verdict, Byrom
waived her right to a sentencing hearing before the same jury and
instead, chose to allow the trial judge to conduct the sentencing
hearing without a jury. At the conclusion of the sentencing
phase, the trial judge sentenced Byrom to death. On direct
appeal, this Court affirmed Byrom's conviction and sentence.
Byrom v. State, 863 So.2d 836 (Miss.2003). Rehearing was
denied, and the United States Supreme Court denied certiorari.
Byrom v. Mississippi, 543 U.S. 826, 125 S.Ct. 71, 160 L.Ed.2d 40
¶ 2. Byrom now seeks relief pursuant to
Miss.Code Ann. Sections 99-39-1 et seq. (Rev.2000) by way of her
Petition for Post-Conviction Relief and Supplement to Petition for
Post-Conviction Relief. We have considered Byrom's petition and
supplement, and after a full review of the claims raised by Byrom
in her pleadings, we find Byrom's petition for post-conviction
relief is without merit and should be denied.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 3. After Byrom's conviction of capital murder
and imposition of the death penalty, Byrom appealed to this Court.
On her direct appeal, we considered the following issues: (1)
requiring two defense doctors to turn over their psychiatric
reports of Byrom to the prosecution; (2) denial of a request for
change of venue; (3) requiring Byrom to submit to a psychiatric
examination by Dr. Cris Lott, who also examined her son and
another co-defendant; (4) requiring Byrom to turn over her
medical records to Dr. Lott; (5) refusal to permit the
introduction by the defense of certain pornographic videotapes;
(6) failure to grant Byrom's amended motion to suppress and
compel discovery; (7) refusal to reopen a suppression hearing;
(8) refusal to quash the indictment; (9) prohibition of
impeachment of Edward Byrom, Jr.; (10) failure to grant a
mistrial after the admission of testimony that Joey Gillis was
charged with the capital murder of Edward Byrom, Sr., and the
prosecution's closing argument to the same effect; (11) refusal
of the defendant's requested jury instruction concerning accessory
after the fact; (12) limiting the cross-examination of Eric Byrom
(the victim's nephew); (13) admission of evidence concerning drug
dog's search; (14) refusing to charge the jury that it had to
find Byrom offered something of value to Joey Gillis before it
could convict her of capital murder; and, (15) erroneous
imposition of the death sentence, which was disproportionate.
See Byrom v. State, 863 So.2d 836 (Miss.2003). The following
statement of facts is taken from this Court's opinion:
In late May and early June 1999, [Michelle]
Byrom began looking for someone to kill her husband. After
attempting to hire at least one other person, Byrom contracted
with Joey Gillis (Gillis) to kill Byrom, Sr. Byrom and Gillis
negotiated a price of $15,000, which was to be paid from the
victim's life insurance proceeds. The Byroms' son, Edward Byrom,
Jr. (Junior), who assisted his mother in finding a killer, was
aware that Gillis had been hired to kill his father. Gillis
attempted to kill Byrom, Sr. on two separate occasions prior to
the murder. Both attempts went unnoticed by Byrom, Sr. Byrom
suffers from Munchausen Syndrome [F N1] and had been intentionally
ingesting rat poison for at least three years prior to the death
of her husband. On the morning of June 4, 1999, Byrom visited
her physician, Dr. Ben Kitchens, who informed her that she had
pneumonia and needed to go to the hospital.[F N2] Byrom, Sr. took
off work and drove Byrom to the hospital. He stayed at the
hospital with Byrom for awhile, then left, promising to return
after lunch. Byrom, Sr. went home, told Junior what room his
mother was in, and then went into his private room to watch
television. A few hours later, Byrom, Sr. was shot to death with
his World War II relic Luger 9-millimeter pistol. There was no
allegation or evidence of forced entry.
According to Junior's and Gillis's statements,
sometime after Byrom, Sr. informed Junior about his mother,
Junior, accompanied by Gillis, left his house. Junior dropped
Gillis off near a wooded area that led to a field beyond the Byrom
home. Gillis was wearing a glove on his right hand and carrying
the 9-millimeter pistol. Thirty minutes later, Junior picked
Gillis up at the same location. Junior asked Gillis if his
father had been killed, and Gillis said yes. When Junior asked
if Gillis was the one who killed his father, Gillis indicated that
he did not do it. [F N3] Junior and Gillis disposed of the glove
and shirt that Gillis was wearing and hid the pistol. Junior
took Gillis home, then traveled to the hospital and told Byrom
that “it was done.” Byrom told Junior to return home to make
sure Byrom, Sr. was dead and to get him help if he was suffering.
Junior went home and found his father dead. He then called 911
to report the murder.
Upon arriving at the Byrom home, the Tishomingo
County Sheriff Department personnel became suspicious of Junior.
He had cuts on his knuckles, which he claimed to have received
after he struck an interior door in anguish upon discovering
Byrom, Sr.'s body. He also had blood on the back of his pants
near his belt line and on the leg. [F N4] Junior was taken into
custody to await questioning. He later confessed, implicating
himself, Byrom, and Gillis in the murder.
Through Junior's confession, law enforcement
determined that Gillis had been in the company of Junior that day
at the Byrom home. Gillis was located and taken into custody for
questioning. He later confessed to his involvement in the murder
as well as that of Byrom and Junior. However, he maintained that
someone else had actually killed Byrom, Sr.
Rick Marlar, an investigator with the Criminal
Investigation Bureau (CIB) of the Mississippi Highway Patrol
(MHP), went to the hospital and conducted the first of five
interviews with Byrom. She did not incriminate herself during
this interview. Later that same night, Tishomingo County Sheriff
David Smith went to the hospital and interviewed Byrom a second
time. After being informed that Junior had “told everything,”
Byrom confessed, implicating herself, Junior, and Gillis in the
murder. This and a subsequent statement were suppressed because
of defective Miranda warnings. However, Byrom later gave two
additional statements during which she revealed substantially the
same incriminating information.
As part of a plea agreement, Junior pled guilty
to conspiracy to commit capital murder, accessory before the fact
to grand larceny, and accessory before the fact to burglary with
intent to commit assault. He also testified against his mother.
Gillis, the alleged “trigger-man” whom Byrom purportedly
promised to pay for the murder of her husband, pled guilty to
accessory after the fact to capital murder and conspiracy to
commit capital murder.
Byrom, 863 So.2d at 845-46. Byrom's petition
for writ of certiorari was denied by the United States Supreme
Court on October 4, 2004.
¶ 4. Byrom has now filed her Petition for
Post-Conviction Relief and Supplement to Petition for
Post-Conviction Relief with this Court; the State has filed its
Response; and Byrom has filed her Rebuttal.
¶ 5. Byrom raises the following issues in her
Petition for Post-Conviction Relief: (1) ineffective assistance
of trial counsel; (2) denial of her federal and state
constitutional rights at the sentencing phase; (3) a fatally
defective indictment that did not provide adequate notice of the
specific offenses against her; (4) denial of a fundamentally fair
trial due to exclusion of relevant evidence; (5) the death
sentence was disproportionate; (6) newly discovered evidence
which would exonerate her; and, (7) the cumulative effect of
trial errors denied her federal and state constitutional rights.
I. WHETHER BYROM WAS DENIED HER SIXTH
AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT BOTH THE
GUILT AND SENTENCING PHASES OF THE TRIAL WITHIN THE MEANING OF
STRICKLAND v. WASHINGTON AND THE CORRESPONDING PORTIONS OF THE
¶ 6. Michelle Byrom first argues she was denied
effective assistance of counsel. We have previously addressed
the issue of ineffective assistance of counsel and the standard
provided in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984):
“The benchmark for judging any claim of
ineffectiveness [of counsel] must be whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A defendant must demonstrate that his
counsel's performance was deficient and that the deficiency
prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674. “Unless a defendant makes both
showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders
the result unreliable.” Stringer v. State, 454 So.2d 468, 477
(Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104
S.Ct. 2052, 80 L.Ed.2d 674). The focus of the inquiry must be
whether counsel's assistance was reasonable considering all the
Judicial scrutiny of counsel's performance must
be highly deferential. (citation omitted) ․ [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 range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound
Stringer, 454 So.2d at 477 (citing Strickland,
466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674). Defense
counsel is presumed competent. Id.
Then, to determine the second prong of
prejudice to the defense, the standard is “a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Mohr v.
State, 584 So.2d 426, 430 (Miss.1991). This means a “probability
sufficient to undermine the confidence in the outcome.” Id. The
question here 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 the aggravating and mitigating
circumstances did not warrant death. Strickland, 466 U.S. at 695,
104 S.Ct. at 2068.
There is no constitutional right then to
errorless counsel. Cabello v. State, 524 So.2d 313, 315
(Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right
to effective counsel does not entitle defendant to have an
attorney who makes no mistakes at trial; defendant just has right
to have competent counsel). If the post-conviction application
fails on either of the Strickland prongs, the proceedings end.
Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State,
584 So.2d 426 (Miss.1991).
Davis v. State, 743 So.2d 326, 334 (Miss.1999)
(citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996)).
Brown v. State, 798 So.2d 481, 493-94
(Miss.2001). Byrom's ineffective assistance of counsel argument
includes four sub-parts.
A. Trial counsel's failure to actively
pursue a change of venue denied Michelle Byrom effective
assistance of counsel.
¶ 7. Byrom alleges her counsel “exercised
unreasonable judgment in not actively pursuing a change of venue
and/or order denying the same.” This Court considered the issue
of failure to grant the motion for change of venue on direct
appeal. We could find no motion for change of venue in the
record, and there was no indication that such a motion had been
presented to the trial judge or ruled on. However, we still
considered this issue on its merits.
There is no evidence in the record, nor
demonstrated by Byrom in her brief, that the failure to move her
trial to another county was prejudicial to her case. A motion
for a change of venue is not automatically granted in a capital
case. There must be a satisfactory showing that a defendant
cannot receive a fair and impartial trial in the county where the
offense is charged. Miss.Code Ann. § 99-15-35 (Rev.2000). See
also Gray v. State, 728 So.2d 36, 65 (Miss.1998). Moreover, the
trial judge took steps, suggested and condoned by Byrom's counsel,
to preserve the jury's impartiality.
Byrom, 863 So.2d at 851.
¶ 8. Thus, while we find the change-of-venue
issue to be procedurally barred, we discuss it further here only
from the standpoint of Byrom's claim that her trial counsel's
failure to pursue a change of venue resulted in Byrom receiving
trial representation which was legally ineffective.
¶ 9. Byrom begins with a discussion of
ineffective assistance of counsel decisions from the United State
Supreme Court. She then starts a new section entitled
“Ineffective Assistance of Petitioner's Counsel After Wiggins v.
Smith,” referring to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct.
2527, 156 L.Ed.2d 471 (2003). Byrom provides little discussion
on how Wiggins is relevant to her claim based on a change of
¶ 10. Byrom cites numerous decisions from
this Court and other jurisdictions on the applicable standards for
change of venue in criminal cases involving potentially
prejudicial publicity, including Fisher v. State, 481 So.2d 203
(Miss.1985); and, Johnson v. State, 476 So.2d 1195 (Miss.1985);
see also Grayson v. State, 806 So.2d 241 (Miss.2001) (affirming
denial of change of venue in capital case). Byrom argues that
pervasive and prejudicial publicity existed in her case. She
attaches newspaper articles from the local press at the time of
her trial. She also points to voir dire, where over forty
individuals stated they were aware of the case through the media
or other sources. Other members of the venire had already formed
opinions about the case, and also some venire members had family
members who were potential witnesses. Byrom finally asserts that
the “court's limited voir dire in open court was insufficient to
establish the effect of pre-trial publicity.”
¶ 11. The State argued Byrom's jury was
selected on November 13, 2000. Included in the articles attached
by Byrom were from the Northeast Mississippi Daily Journal dated
November 14, 2000, the Daily Corinthian dated November 15, 2000,
the Tishomingo County News dated November 16, 2000, the Daily
Corinthian dated November 16, 2000, and the Daily Corinthian dated
November 17, 2000. The State argues that because these articles
were published after the jury was selected and sequestered, they
cannot serve as a basis for the argument that the jury was
prejudiced by publicity.
¶ 12. The State next discussed two undated
articles from the Tishomingo County News. The State claims that
the first article must have been published in August 1999, as it
dealt with Joey Gillis's preliminary hearing, which took place on
August 2, 1999. The State claims the second article was
published in June 1999, shortly after Edward Byrom, Sr.'s murder
on June 4, 1999. The State argues that these articles do not
amount to the kind of publicity which would have warranted a
change in venue, even if they had been presented to the trial
¶ 13. The State also addresses Byrom's
allegation that “[a]t least two individuals who responded that
they had pretrial knowledge of the case were actually seated on
the jury.” The record references cited by Byrom point to Shelia
Cooley and Donna Durham as the jurors in question. A review of
the record reveals that during voir dire, both Cooley and Durham
stated that they did not know what happened in the case; both
stated that they would not be influenced by what they had heard;
and, both stated they would rely only on the trial evidence in
making their decisions.
¶ 14. The State answers Byrom's allegation
that “Connie Lorella Dexter knew Byrom but did not respond when
asked by the court.” The State points to voir dire where the
trial court specifically calls on Ms. Dexter, and she answers that
“[o]ur children played baseball in the same baseball summer
league.” Her connection to Byrom was “just seeing them on the
baseball field.” Dexter denied this would cause her any problem
serving as a juror in this case.
¶ 15. After a thorough review of the record,
we find no justifiable reason necessitating a change of venue in
this case. Stated differently, as we found on direct appeal, the
trial court certainly committed no error in failing to change
venue in this case. Therefore, trial counsel's failure to
aggressively seek a change of venue could hardly be deemed to rise
to the level of rendering ineffective assistance. Thus, it
follows that Byrom's claim of ineffective assistance of counsel
for failure to pursue a change of venue is without merit.
B. Failure of Byrom's trial counsel to
conduct an adequate investigation generally.
¶ 16. Byrom next makes a general argument of
law, citing Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156
L.Ed.2d 471 (2003), as the “most recent definitive pronouncement
from the United States Supreme Court concerning ineffective
assistance of counsel claims.” The United States Supreme Court
found Wiggins received ineffective assistance of counsel where his
trial counsel had failed to investigate and present mitigating
evidence of Wiggins's background, including physical and sexual
abuse committed by his mother, by a series of foster parents, and
by a Job Corps supervisor, as well as evidence of mental
retardation. 539 U.S. at 516-18, 123 S.Ct. at 2533. Counsel for
Wiggins failed to make this investigation even though the State
made funds available for this purpose. 539 U.S. at 524, 123 S.Ct.
at 2536. Trial counsel instead attempted to show that Wiggins
was not responsible for the murder in question. 539 U.S. at 519,
123 S.Ct. at 2534. The Supreme Court stated:
In finding that Schlaich and Nethercott's
investigation did not meet Strickland's performance standards, we
emphasize that Strickland does not require counsel to investigate
every conceivable line of mitigating evidence no matter how
unlikely the effort would be to assist the defendant at
sentencing. Nor does Strickland require defense counsel to
present mitigating evidence at sentencing in every case. Both
conclusions would interfere with the “constitutionally protected
independence of counsel” at the heart of Strickland, 466 U.S., at
689, 104 S.Ct. 2052, 80 L.Ed.2d 674. We base our conclusion on
the much more limited principle that “strategic choices made after
less than complete investigation are reasonable” only to the
extent that “reasonable professional judgments support the
limitations on investigation.” Id., at 690-691, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674. A decision not to investigate
thus “must be directly assessed for reasonableness in all the
circumstances.” Id., at 691, 466 U.S. 668, 104 S.Ct. 2052, 80
Wiggins, 539 U.S. at 533, 123 S.Ct. 2527.
Under Wiggins, counsel may make strategic decisions to introduce,
pursue or ignore certain evidence, but these decisions may amount
to ineffective assistance if made based on an inadequate or
¶ 17. Byrom further argues that the key
element in Wiggins is the Supreme Court's use of the phrase
“prevailing professional standards.” After appearing to argue
that Wiggins set a new standard in ineffective assistance cases,
Byrom states that the United States Supreme Court “specifically
made it clear that Wiggins does not create new law but simply
re-adopts and clarifies the import of Strickland.” Byrom then
cites numerous cases from other states and the federal courts
where counsel was found to be ineffective. Of particular import,
however, is that Byrom did not raise ineffective assistance of
counsel on direct appeal. Likewise, in her PCR petition Byrom
did not raise ineffective assistance of counsel on direct appeal.
Likewise, in her PCR petition before us today, Byrom asserts no
specific ground of her trial counsel's ineffective assistance, but
instead makes the general assertion that Wiggins somehow changes
the procedure for appellate review of ineffective assistance of
counsel claims pursuant to Strickland. We disagree and thus find
this issue to be without merit.
C. Failure of Byrom's counsel to conduct an
adequate investigation in the guilt-innocence and sentencing
¶ 18. Byrom specifically argues that trial
counsel failed to conduct any investigation of her background,
such as her medical, educational, employment and training, family
histories, and religious and cultural influences. Byrom
complains that counsel did not call a single witness, including
Byrom, herself, during the guilt phase. She states that she and
Kenneth Dimitro could have rebutted any notion of a good
relationship between Edward Byrom, Jr. and the deceased.
¶ 19. The State answers first that the issue
as to Edward Byrom Jr.'s testimony should be barred, because Byrom
failed to specifically state where in the appeal record Edward,
Jr. ever testified that his relationship with his father was good.
The State then cites Junior's testimony, where he recounts
arguments with his father consisting of punches, threats to use
guns and baseball bats, shouting, cursing, and alcohol abuse, with
Junior primarily the recipient of this abuse. The State argues
that because there was no testimony that Junior led a normal home
life, Byrom's trial counsel was not ineffective for failure to
rebut such a notion.
¶ 20. Byrom next argues trial counsel did not
present a single witness in the sentencing phase. The defense
instead submitted reports from Dr. Ben Kitchens and Dr. Keith
Caruso. According to the reports, Dr. Kitchens saw Byrom in
1997, 1998 and 1999. Michelle no doubt had several
medical/physical problems such as lupus, depression, high blood
pressure and alcohol abuse.
¶ 21. Dr. Caruso, a psychiatrist, reported
that at the time of the death of Michelle's husband, Michelle
suffered from major depression, alcohol dependence, Munchausen's
Syndrome, physical abuse, borderline personality disorder, lupus,
pneumonia, anemia, chronic pain and hypertension, among other
problems. As we noted on Byrom's direct appeal, people who
suffer from Munchausen's Syndrome “intentionally injure themselves
in an attempt to garner sympathy. However, persons suffering
from this disorder are different from malingerers in that
Munchausen sufferers will be aware of their deceits but unaware of
their motivations.” Byrom, 863 So.2d at 845, n. 1. Byrom was
using nine different medications at the time of her husband's
murder. Dr. Caruso's report provided a “relevant personal
history” which contained reports of physical and sexual abuse by
her alcoholic stepfather during her teen years, including that she
was used by him as a prostitute; that she ran away from home at
fifteen and worked as a stripper before meeting the victim and
marrying him; that Edward Sr. became increasingly physically
abusive, particularly when drinking; that he was unfaithful to
her on numerous occasions; that he physically and psychologically
abused their son; and, that she became increasingly dependent on
alcohol and purposely injured herself so she could be admitted to
a hospital to escape the abuse for a short time. Dr. Caruso
stated that a combination of her physical and psychological
problems, along with the number of drugs she was taking and her
alcohol abuse, led to a feeling of helplessness which resulted in
her believing that violence was a solution to her problems.
¶ 22. Byrom claims several family members
were available to testify, but were not called; and, that her
trial counsel never discussed the case with them, or that they
were not “allowed” to attend the trial. Byrom specifically cites
the affidavits of her brother, Kenneth Dimitro; her mother, Betty
Polstalwait; her sister-in-law, Doranna Dimitro; her brother,
Louis Dimitro; her niece, Leighanne Bundy; her sister, Helen
Marie Garnett; and her own affidavit. We provide here a summary
of these affidavits.
¶ 23. Kenneth Dimitro, stated he was never
contacted by Byrom's attorneys; that Edward Sr. was a drunk;
that Byrom's nature was that she would not complain to her family
about her personal life; that Byrom would never commit suicide
because she had too much to live for; that Byrom came from a big
family, and all the siblings stuck together; that their
stepfather was an abusive drunk who sexually abused Byrom, so she
ran away from home as a teenager; and, that he (Kenneth) would
have testified for Byrom.
¶ 24. Betty Polstalwait stated no one
contacted her about Byrom's case and she thus did not attend
Byrom's trial; that Byrom was a good child; that Michelle had a
normal childhood, except for leaving when she was a teenager;
and, that Byrom had a drinking problem but she was not a mean
¶ 25. Doranna Dimitro stated she was not
contacted by Byrom's attorneys prior to or during the trial; that
Byrom would try to hide the fact that she was abused by the victim
because she was humiliated; that Byrom would drink and take drugs
to escape from reality; that Junior and Byrom were protective of
each other; that Sunny Phillips, one of Byrom's attorneys, said
she did not want to try the case but was forced to; that none of
Byrom's lawyers ever told them anything about the case; that they
tried to get transcripts of the trial but had thus far been unable
to do so; and that she was not allowed to attend trial or read a
newspaper, but instead, she stayed at the hotel.
¶ 26. Louis Dimitro stated that Byrom was a
good and helpful person; that she hid her husband's abuse of her
from her family, and thus became secluded; that she drank to
escape reality; that he (Louis) found out about Byrom's arrest
from the chaplain at the jail; that Byrom's attorney contacted
him twice by phone, but never interviewed him or asked him about
Byrom's life; that Edith, the victim's mother, never blamed Byrom
for her son's death; that he and his siblings had “an average”
home life except for their stepfather, who physically abused all
of the children, and sexually abused Byrom, causing her to leave
home at age fifteen; that one of Byrom's attorneys told certain
family members to attend the trial, but once they arrived at the
courthouse, they were not allowed to attend the trial; that Byrom
was schizophrenic and bi-polar, in addition to having lupus; that
Byrom's marriage with Edward, Sr. was very abusive; and, that
Edward, Sr. once got Louis's girlfriend “real drunk and took
advantage of her.”
¶ 27. Leighanne Bundy stated she lived with
Byrom and the victim for about one and one-half years; that Byrom
was like a second mother to her; that she (Leighanne) witnessed
Byrom's bad marriage and the abuse of Byrom and Edward, Jr. at the
hands of Edward, Sr.; that Edward, Sr. had violent mood swings,
particularly when he was drinking; and, that she (Leighanne) was
a host, along with Edward, Jr., at some of the parties at the
house where Byrom and Edward, Sr. would go to a local motel.
¶ 28. Helen Marie Garnett stated she did not
care for Edward Byrom Sr. because he sexually assaulted her, but
she never told Byrom; that Byrom and Edward, Sr. had a “decent”
relationship; that Edward, Sr. and Edward, Jr. had a bad
relationship; that Byrom was a really good person; that Edward,
Jr. was a “good boy” and he and her daughter, Leighanne, were
“very close;” and, that had anyone asked her, she would have
testified, but Byrom's lawyers never talked to her.
¶ 29. In her affidavit, Byrom stated her
marriage to the victim was terrible because he was violent and
jealous and physically abusive toward her and Edward, Jr.; that
she began drinking to deal with the abuse; that she left home
when she was a teenager to escape an abusive stepfather; that she
remembered talking to her attorneys “2-3 times” before the trial,
and she probably spent “1-2 hours” with her attorneys discussing
her case; that her attorneys decided not put on any witnesses,
saying Leighanne Bundy was too young and Helen Marie Garnett's
brain problem was too extensive; that one of her attorneys, Terry
Wood, told her that if the judge sentenced her then she would go
to jail for “6 months to 2 years;” that her attorneys did not
explain that she was eligible for the death penalty, and she
didn't realize that she could get the death penalty until the
sentencing phase; that the judge kept making comments to the jury
that she deserved the death penalty; and, that she wanted to
testify but one of her attorneys, Terry Wood, told her she would
not make a good witness.
¶ 30. Byrom also attached several dozen pages
of medical records from her treatment in 1998 at Helen Keller
Hospital in Sheffield, Alabama. The records reveal that Byrom
evidently suffered from lupus at the time.
¶ 31. In its Response, the State attached the
affidavits of Terry L. Wood and Sonya (Sunny) Phillips, Byrom's
trial counsel. Both affidavits contain the following language:
I fully discussed the matter of the waiver of
the jury during the sentence phase of the trial with Michelle
Byrom. While I did suggest this trial strategy to Ms. Byrom, the
ultimate decision was hers. Although she stated that she fully
understood ramifications of the decision to waive the jury for
sentencing, I cannot be certain she did so. The trial court
further explained the ramifications of waiving the jury to
Michelle Byrom in open court and she stated that she understood
the rights she was waiving.
¶ 32. Both affidavits discuss interviewing
potential witnesses, some of whom were Byrom's family members.
Terry Wood states that he had lengthy discussions with Byrom's
family members regarding the case, but that he could not remember
their names. He also stated that he arranged for these
out-of-state family members to be present in Iuka during the
¶ 33. Sonya Phillips stated that she
specifically spoke with the following family members: Renee
Copeland, (who did not submit an affidavit), Louis Dimitro, and
Leighanne Garnett (Bundy). Phillips also stated that she
arranged for these family members, along with Helen Garnett, to be
present in Iuka at the time of the trial so that they could be
called as witnesses if they were needed. The affidavits of Wood
and Phillips each contain the following language: “Because of
events during the trial of this case I decided, as a matter of
trial strategy, not to call these witnesses before the court
during the sentencing phase of the trial.”
¶ 34. The State argues first that the
affidavits of Kenneth Dimitro, Betty Polstalwait, Doranna Dimitro,
Louis Dimitro, Leighanne Bundy, and Helen Marie Garnett, are
procedurally faulty, as the affidavits were apparently signed by
the affiants in Tennessee or Michigan, but notarized by a Rankin
County, Mississippi, notary public, who would have no authority to
administer an oath outside the state of Mississippi. Indeed, a
review of these affidavits reveals the affidavits of Kenneth
Dimitro, Betty Polstalwait, Doranna Dimitro, and Louis Dimitro
begin with the phrase “State of Tennessee, County of Rutherford,”
and the affidavits of Leighanne Bundy and Helen Marie Garnett
begin with the phrase “State of Michigan, County of Monroe.”
However, all six of the affidavits are notarized by a Rankin
County, Mississippi notary public.
¶ 35. The State further argues the affidavits
contain much hearsay, speculation, irrelevant and contradictory
statements. The State opines that some statements in the
affidavits are not credible. The State further points out that
several of the affiants admit to having been in Iuka during the
trial, and were obviously kept away from the trial by defense
counsel so they could be called as witnesses, if necessary. The
State argues it is obvious why some of these affiants were not
called as witnesses, such as Helen Garnett's unexplained “brain
problem” or Leighanne Bundy's attendance at certain parties at the
Byrom house while Byrom and Edward Sr. were away.
¶ 36. The failure of defense counsel to call
any witnesses, particularly at sentencing, is admittedly
perplexing. The generic statements in the defense attorneys'
affidavits that they did not call the family witnesses because of
trial strategy is not helpful. The affidavits of the family
members reveal at least clues as to why some may not have been
called. The trial judge was provided with doctors' reports at
the sentencing phase of the trial, and these reports set out
Byrom's life and physical and mental condition in sad detail.
The gist of the family members' testimony from the affidavits was
that Byrom was a good person who had lived a difficult life and
that whatever she did was because she was sick and in a terrible
situation. However, to argue that this testimony, which was
already known to the trial judge, would have been any more
convincing or persuasive if presented through witness testimony,
is, at best, speculative. Thus, from the record before us, when
we necessarily apply the Strickland criteria, we are unable to
conclude that trial counsel's investigation was unreasonable or
ineffective, or that their failure to call the family members
amounted to ineffective assistance of counsel. Therefore, we
find Byrom's argument that her trial counsel failed to conduct an
adequate investigation for the guilt-innocence phase and the
sentencing phase is without merit.
D. Trial Counsel Failed to Object and
Preserve for Appeal Improper Comments Made by the Prosecutor
during the Closing Argument.
¶ 37. During closing argument at the guilt
phase of the trial, the assistant district attorney stated:
“[A]nd as Mr. Ralph Dance testified, Mr. Gillis is in jail
awaiting trial. That was his testimony.” Defense counsel did
not object. This issue was raised on direct appeal. This Court
found the matter was procedurally barred because of the lack of
objection. Notwithstanding the procedural bar, we still
discussed the merits of the issue and stated:
There was ample evidence presented at trial
regarding Gillis's involvement in this crime, including Byrom's
and Junior's statements, and the disputed comment by the
prosecutor was nothing more than a comment on that evidence, which
had been received without any objection from Byrom. Finally,
Byrom has failed to assert, or even demonstrate, that she suffered
any prejudice as a result of these comments.
Byrom, 863 So.2d at 873.
¶ 38. Notwithstanding the procedural bar, for
the reasons stated, we find Byrom's argument that her defense
counsel rendered ineffective assistance due to their failure to
object to the prosecutor's comments during the State's closing
argument of the guilt phase of the trial is without merit.
¶ 39. In sum, Byrom claims her trial counsel
rendered ineffective assistance by (1) failing to actively pursue
a change of venue; (2) failing to generally conduct an
investigation of her case; (3) failing to conduct an adequate
investigation in preparation for the guilt-innocence phase and the
sentencing phase of her trial; and, (4) failing to object and
preserve for appeal purposes the prosecutor's improper comments
during the guilt phase of the trial. We have determined each of
these arguments is without merit because, in her efforts to meet
the Strickland criteria, Byrom has failed to demonstrate that her
trial counsel's actions were deficient and that the deficiency
prejudiced the defense of her case. Strickland, 466 U.S. at 687,
104 S.Ct. 2052. “Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984)
(citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). We thus
find Byrom's argument that she was denied her Sixth Amendment
right to the effective assistance of counsel at her trial is
II. WHETHER THE ERRORS AND OMISSIONS OF THE
TRIAL JUDGE AT SENTENCING DENIED BYROM OF FUNDAMENTAL
CONSTITUTIONAL RIGHTS AS GUARANTEED UNDER THE UNITED STATES AND
¶ 40. Michelle Byrom next argues she was
improperly sentenced by the trial judge to death, as Miss.Code
Ann. Section 99-19-101 (Rev.2000) provides for sentencing only by
a jury in capital cases. Section 99-19-101(1) states:
Upon conviction or adjudication of guilt of a
defendant of capital murder or other capital offense, the court
shall conduct a separate sentencing proceeding to determine
whether the defendant should be sentenced to death, life
imprisonment without eligibility for parole, or life imprisonment.
The proceeding shall be conducted by the trial judge before the
trial jury as soon as practicable. If, through impossibility or
inability, the trial jury is unable to reconvene for a hearing on
the issue of penalty, having determined the guilt of the accused,
the trial judge may summon a jury to determine the issue of the
imposition of the penalty. If the trial jury has been waived, or
if the defendant pleaded guilty, the sentencing proceeding shall
be conducted before a jury impaneled for that purpose or may be
conducted before the trial judge sitting without a jury if both
the State of Mississippi and the defendant agree thereto in
writing. In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence, and shall
include matters relating to any of the aggravating or mitigating
circumstances. However, this subsection shall not be construed
to authorize the introduction of any evidence secured in violation
of the Constitutions of the United States or of the State of
Mississippi. The state and the defendant and/or his counsel
shall be permitted to present arguments for or against the
sentence of death.
(Emphasis added). In Bishop v. State, 812
So.2d 934 (Miss.2002), this Court found the statutory requirement
of a jury for sentencing in capital cases could be waived, even
though the defendant exercised the right to a jury trial during
the guilt phase. The State, in addition to citing Bishop, argues
that Byrom did not raise this issue on direct appeal, and it is
procedurally barred under Miss.Code Ann. Section 99-39-21(1).
The State is correct. However, while Byrom is indeed
procedurally barred from raising this issue in her PCR petition,
procedural bar notwithstanding, we address the merits of this
issue and state that our decision in Bishop clearly lays to rest
the issue of whether a defendant being tried under our statutory
sentencing scheme may waive a jury and defer to the trial judge as
to the appropriate sentence upon a jury's finding of guilt as to
capital murder. Clearly, a jury may be waived by a defendant
upon a finding by the trial judge that the defendant's waiver is
knowingly and intelligently made. Thus, Byrom's argument that
the capital sentencing statute does not permit a waiver of a jury
for sentencing purposes is without merit.
¶ 41. Byrom next argues that even if a waiver
were possible in this situation, her waiver of a sentencing jury
was not “knowingly and intelligently made” and therefore was not
valid. She argues that the trial judge failed to advise her of
“the necessary proof and constitutional rights that would be
affected prior to signing the waiver.” Byrom argues she had a
right to be informed of the constitutional rights she was waiving,
the minimum and maximum sentences that could be given for the
particular crime, and the elements of the charge against her,
citing Spry v. State, 796 So.2d 229 (Miss.2001); Ward v. State,
708 So.2d 11 (Miss.1998); Washington v. State, 620 So.2d 966
(Miss.1993); and Horton v. State, 584 So.2d 764 (Miss.1991).
Each of these cases involved a situation where the defendant
entered a plea of guilty.
¶ 42. A review of the Petition for Sentencing
Without a Jury, dated November 18, 2000, and signed by Byrom, her
attorneys and trial judge, the Certificate of Counsel, and the
colloquy between Byrom and the trial judge, unquestionably reveals
that Byrom was informed she had the right to a sentencing hearing
and that she could be sentenced to death, life without parole, or
life imprisonment. She was informed that she had been convicted
of capital murder by the jury; that the jury would have to
unanimously find, beyond a reasonable doubt, the existence of any
aggravating circumstances in order to sentence her to death, but
that mitigating factors would not have to be found unanimously or
beyond a reasonable doubt; and, that the jury would have to find
that the mitigating circumstances did not outweigh the aggravating
circumstances before the jury could impose the death penalty.
The State had filed a Notice of Aggravating Circumstances on
October 24, 2000.
¶ 43. Byrom was told the trial judge would
perform the same analysis as a jury, but it would be solely within
his discretion as to whether to impose the death sentence. Byrom
was asked if she felt she had the benefit of a complete and
adequate discussion with her attorneys concerning her waiver of a
jury as to sentencing, and Byrom stated she had. Byrom's
attorneys stated that they explained the maximum and minimum
penalties for capital murder and considered her competent to
understand the charges against her and the effect of her petition
to waive sentencing by a jury.1
Byrom's attorneys stated they felt she was mentally and
physically competent and had no reason to believe Byrom was under
the influence of any drugs which would affect her understanding of
¶ 44. Byrom argues she was given erroneous
information as to potential sentences. She states she was told
she could receive life imprisonment with the possibility of parole
but it was actually not an option at the time of her sentencing.
Byrom cites no authority in support of this argument, and the
State does not respond to it. There is no question that Section
99-19-101 provides that “[u]pon conviction or adjudication of
guilt of a defendant of capital murder or other capital offense,
the court shall conduct a separate sentencing proceeding to
determine whether the defendant should be sentenced to death, life
imprisonment without eligibility for parole, or life
imprisonment.” Miss.Code Ann. § 99-19-101(1)(Rev.2000). Indeed,
the petition signed by Byrom, her attorneys, and the trial judge
states that Byrom understood she could be sentenced in the
discretion of the trial judge “to the death penalty, to life
without parole, or to life imprisonment.” The waiver signed by
the prosecutor contained similar language as to the available
sentencing options. The certificate of counsel signed by Byrom's
trial attorneys stated, inter alia, the had explained to Byrom
“the maximum and minimum penalties” for capital murder.
¶ 45. There can be no doubt that, pursuant to
our capital sentencing statute, Section 99-19-101, Byrom was
advised as to the sentencing options available to a jury, or a
judge sitting without a jury, after a capital murder conviction.
However, our parole statutes have admittedly eliminated the
practical effect of a life imprisonment sentence imposed under the
provisions of Section 99-19-101, insofar as the possibility of
parole. See Miss.Code Ann. § 47-7-3(1)(f).
¶ 46. In Branch v. State, 882 So.2d 36
(Miss.2004), the defendant claimed the trial judge erred in not
giving the jury the third sentencing option of life with the
possibility of parole which, according to Branch, would have
possibly caused the jury to take the middle ground of life without
parole, instead of imposing the more harsh sentence of death, or
the more lenient sentence of life with the possibility of parole.
In referring to Miss.Code Ann. Sections 97-3-21, 99-19-101(1),
and 47-7-3(1)(f) and our decision in Pham v. State, 716 So.2d
1100, 1103 (Miss.1998), we stated:
We again revisited the sentencing options
afforded a capital murder defendant in Flowers v. State, 842 So.2d
531 (Miss.2003), and noted that § 47-7-3(1)(f) denies parole
eligibility to any person “charged, tried, convicted, and
sentenced to life imprisonment under the provisions of Section
99-19-101.” Flowers, 842 So.2d at 540.
Branch, 882 So.2d at 79.
¶ 47. Thus, while our capital sentencing
statute still provides for life imprisonment, our parole statutes
clearly do not. We reaffirmed this fact in Pham, and later in
Flowers. The stark reality of all of this is that while Byrom's
trial judge did, as a matter of clear statutory law, have three
sentencing options, including life imprisonment, the executive
branch of state government via the Mississippi Department of
Corrections, pursuant to Section 47-7-3(1)(f), would have
administratively converted a life imprisonment sentence to a
sentence of life imprisonment without parole eligibility. All of
this having been said, so that we are crystal clear on this point,
notwithstanding the provisions of Section 99-19-101(1), consistent
with the legislative intent expressed via Section 47-7-3(1)(f) and
this Court's decisions in Pham, Flowers and their progeny, the
sentencer (jury or judge) in a capital case tried pursuant to
Section 99-19-101, has in reality only two sentencing
options-death, or life imprisonment without parole eligibility.
¶ 48. Byrom fails in her argument on this
point however, because she has shown no actual prejudice in being
informed that one of the possible sentences to be considered by
the trial judge was that of life imprisonment. We do not
interpret her claim to be that she understood that by waiving a
jury, the trial judge somehow became uniquely empowered with this
third sentencing option of life imprisonment which would not have
been available to the sentencing jury. We further do not
interpret Byrom's claim to be that she waived the jury at
sentencing only because she was informed that the trial judge had
this third sentencing option of life imprisonment. In the end,
Byrom had every opportunity to raise this issue on direct appeal,
but she failed to do so; therefore, pursuant to statute, she is
procedurally barred from attacking the death sentence which was
imposed by the trial judge, as opposed to the jury. Miss.Code
Ann. Section 99-39-21(1) (Supp.2005) states:
Failure by a prisoner to raise objections,
defenses, claims, questions, issues or errors either in fact or
law which were capable of determination at trial and/or on direct
appeal, regardless of whether such are based on the laws and the
Constitution of the state of Mississippi or of the United States,
shall constitute a waiver thereof and shall be procedurally
barred, but the court may upon a showing of cause and actual
prejudice grant relief from the waiver.
Thus, while the statute permits this Court to
apply a procedural bar due to a waiver, we have the discretion to
grant relief from the waiver “upon a showing of cause and actual
prejudice.” Section 99-39-21(4) states that the term “cause” is
“defined and limited to those cases where the legal foundation
upon which the claim for relief is based could not have been
discovered with reasonable diligence at the time of trial or
direct appeal.” Section 99-39-21(5) states that the term “actual
prejudice” is “defined and limited to those errors which would
have actually adversely affected the ultimate outcome of the
conviction or sentence.”
¶ 49. Therefore, for the reasons stated, in
considering Byrom's assertions and reviewing the record before us,
we conclude, without question, that Byrom has failed to show cause
and actual prejudice by being informed of the trial judge's “three
sentencing options” en route to making a decision to waive a jury
determination of the appropriate sentence and placing this
decision in the hands of the trial judge. Thus, this issue is
procedurally barred pursuant to Miss.Code Ann. Section 99-39-21(1)
III. WHETHER THE INDICTMENT WAS FATALLY
DEFECTIVE DUE TO THE FAILURE TO INCLUDE THE STATUTORY AGGRAVATING
FACTORS, AFFORDING BYROM INADEQUATE NOTICE OF THE SPECIFIC
OFFENSES OF WHICH SHE WAS TO DEFEND, IN VIOLATION OF THE UNITED
STATES AND MISSISSIPPI CONSTITUTIONS.
¶ 50. Byrom next argues that her indictment
was defective because the aggravating factors were not included in
the indictment. She cites Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and Jones v.
United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311
¶ 51. The State first argues that Byrom is
procedurally barred from raising this issue because she did not
raise it at trial. The application of procedural bar is
questionable on this issue. Byrom was tried in November, 2000,
and Ring was decided in 2002. However, the question of
procedural bar notwithstanding, this issue is unquestionably
¶ 52. As noted by the State, this issue was
raised, considered and found to be without merit by this Court in
Brown v. State, 890 So.2d 901, 917-18 (Miss.2004); Gray v. State,
887 So.2d 158 (Miss.2004); and Mitchell v. State, 886 So.2d 704
(Miss.2004). In Brown, we stated:
Brown urges that the prosecution must include
in the indictment any aggravating factors which it intends to
prove at the sentencing phase of the trial, and that because his
indictment did not include a statutory aggravating factor or a
mens rea element it is constitutionally infirm.
This is not our law. The major purpose of any
indictment is to furnish the accused a reasonable description of
the charges so an adequate defense might be prepared. See
Williams v. State, 445 So.2d 798, 804 (Miss.1984). Accordingly,
all that is required in the indictment is a clear and concise
statement of the elements of the crime charged. Id. at 804. Our
death penalty statute clearly states the only aggravating
circumstances which may be relied upon by the prosecution in
seeking the ultimate punishment. Williams, 445 So.2d at 805.
Thus, every time an individual is charged with capital murder they
are put on notice that the death penalty may result. See Stevens
v. State, 867 So.2d 219, 227 (Miss.2003). This is the law of our
Brown urges that the United States Supreme
Court cases of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), bolster his position.
They do not. We have previously discussed these cases at length
and concluded that they address issues wholly distinct from our
law, and do not address indictments at all. See Stevens, 867
So.2d at 225-27. This issue is without merit.
890 So.2d at 917-18. (Emphasis added). The
law of our state is unequivocal that in cases where consideration
of the death penalty is applicable, there is no requirement that
the applicable statutory aggravating factors be included in the
indictment. Thus, this issue is without merit.
IV. WHETHER THE EXCLUSION OF CERTAIN
EVIDENCE DENIED BYROM A FUNDAMENTALLY FAIR TRIAL.
¶ 53. Byrom next argues exclusion of “the
home video” 2
and “the jailhouse letters” was erroneous and denied her a fair
trial. The State argues these issues were raised and considered
on direct appeal and, as such, Byrom is barred from raising them
here pursuant to Miss.Code Ann. Section 99-39-21(1)(3). We agree
and find this issue is procedurally barred. However, procedural
bar notwithstanding, we also find this issue to be without merit.
In considering this issue on direct appeal, we stated:
Byrom was given sufficient latitude to convey
her theory of abuse to the jury․Byrom's theory of abuse was
established through other evidence. The jury received evidence
that Byrom, Sr. physically abused Byrom and Junior; that Byrom,
Sr. forced Byrom to have sex with other people and foreign
objects; that Byrom, Sr. was obsessed with pornography; and,
that Junior, not Gillis, supposedly killed Byrom, Sr. The jury did
not need this home video to be convinced of Byrom, Sr.'s abusive
and pornographic tendencies. We find the trial court did not
commit error in excluding the home video of Byrom. Therefore,
this issue is without merit.
Byrom, 863 So.2d at 854. Byrom also makes a
similar argument concerning certain letters written by her son,
Edward, Jr., to Byrom while they were in prison. At trial, the
defense attempted to use the letters to impeach Junior without
having disclosed their existence to the State. Because of this
failure to disclose, the trial judge excluded the letters. On
direct appeal this Court concurred with the trial judge's ruling.
See Byrom, 863 So.2d at 868-872. Having alternatively
considered this issue on its merits, we find it is as a matter of
law without merit.
V. WHETHER THE DEATH SENTENCE WAS
¶ 54. Byrom next argues her death sentence
was disproportionately imposed. She raised this issue on direct
appeal, alleging there was insufficient evidence of the single
aggravating factor, that the murder was committed for pecuniary
gain, and that the trial judge failed to give proper consideration
to the mitigating factors she requested. This Court found no
error in the trial judge's decision. See Byrom, 863 So.2d at
¶ 55. Byrom now argues her death sentence is
disproportionate because (1) her son and Joey Gillis, one of whom
shot and killed the victim, received lesser sentences, and (2) the
decision in Ring v. Arizona mandates that a jury, and not a judge,
make the findings as to aggravating and mitigating factors that
lead to the death sentence. The State argues first that because
this issue was raised on direct appeal, Byrom is procedurally
barred by res judicata from raising the issue under Miss.Code Ann.
Section 99-39-21(3). We agree that this issue is procedurally
barred, but procedural bar notwithstanding, we consider the merits
of this issue.
¶ 56. Though Byrom did raise this issue on
direct appeal, she supports this issue with different arguments
here. Byrom first argues Mississippi's statutory scheme relating
to felony murder cases fails to sufficiently narrow the class of
persons who are death-eligible as a result of the commission of
felony murder, citing Tison v. Arizona, 481 U.S. 137, 107 S.Ct.
1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Gregg v. Georgia, 428 U.S.
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); and, Furman v.
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The
State responds first that Byrom was convicted of capital murder
“which is perpetrated by any person who has been offered or has
received anything of value for committing the murder” under
Miss.Code Ann. section 97-3-19(2)(d), and that this is thus not a
felony murder case. Second, the State points out that even if
the merits of this argument were reached, this Court has
considered this argument in other cases and has found it to be
without merit. See Grayson v. State, 879 So.2d 1008, 1013
¶ 57. Byrom also argues that either her son
or Joey Gillis actually fired the shots that killed Edward Byrom,
Sr., and because they did not receive the death penalty, and she
did, her sentence is disproportionately severe, citing Randall v.
State, 806 So.2d 185 (Miss.2001), and White v. State, 532 So.2d
1207 (Miss.1988). Edward, Jr. pled guilty to conspiracy to
commit capital murder, accessory before the fact to grand larceny,
and accessory before the fact to burglary of a dwelling with
intent to commit assault. He was sentenced to a total of fifty
years, with twenty years suspended and thirty years to serve.
Gillis pled guilty to conspiracy to commit murder and accessory
after the fact to capital murder and received a total of
twenty-five years, with ten years suspended and fifteen years to
serve. In White, the defendant's death sentence was reversed
because there was insufficient evidence supporting the Enmund
factors. 532 So.2d at 1220-22. In Randall, we stated:
Randall correctly assert[ed] that all of the
cases relied on by the State involve a defendant who was (1) found
to have killed, attempted to kill and/or intended to kill, (2) was
at least the instigator or mastermind of the crime, and/or (3) the
codefendant was also sentenced to death or was not subject to
sentencing by a jury. While the codefendants testified that
Randall and Stokes both pointed guns at Daniels, there is no proof
as to who actually killed him. The jury specifically declined to
find that Randall killed or attempted to kill Daniels.
Additionally, Stokes only received life in prison and the other
co-defendants entered into plea agreements which spared their
lives. Because the only fact, as found by the jury, was that
Randall “contemplated” lethal force, the death sentence was
disproportionate based on the findings of fact as determined by
the jury. However, on retrial, other facts may be developed
sufficient to support a death sentence.
Randall, 806 So.2d at 234.
¶ 58. The State does not respond to this
argument. Inasmuch as the prosecution presented evidence which
supported the finding that Byrom intended that her husband be
killed and that she was the instigator or mastermind of the crime,
Byrom's case may be distinguished from Randall. This Court
reached similar decisions in Simmons v. State, 869 So.2d 995
(Miss.2004) and Ballenger v. State, 667 So.2d 1242 (Miss.1995),
rev'd on other grounds, 761 So.2d 214 (Miss.2000), in affirming
death sentences for persons who did not actually cause the death
of the victim.
¶ 59. Byrom next argues her death sentence
is disproportionate because the trial judge alone determined the
mitigating factors did not outweigh the aggravating factors. She
argues that under the recent decision of Ring v. Arizona, 536 U.S.
584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), any aggravating
circumstance in a capital case must be found by a jury beyond a
reasonable doubt. The State does not respond to this argument.
¶ 60. While there is little authority on
whether the right to a jury sentencing discussed in Ring may be
waived, other states considering this question have found that a
defendant who knowingly and intelligently waives a jury in the
penalty phase of a capital case also waives any argument based on
Ring. See Bryant v. State, 901 So.2d 810 (Fla.2005); Thacker v.
State, 100 P.3d 1052 (Okla.Crim.App.2004). We find here, because
the record clearly reveals Byrom made a voluntary, knowing and
intelligent waiver of her right to have the jury determine her
sentence, it necessarily follows that she has waived her rights
¶ 61. Byrom finally cites cases from other
states which she claims are more “factually similar” to her case,
including Commonwealth v. Grimshaw, 31 Mass.App.Ct. 917, 576
N.E.2d 1374 (1991); State v. Anderson, 785 S.W.2d 596
(Mo.Ct.App.1990); Boyd v. State, 321 Md. 69, 581 A.2d 1 (1990);
and People v. Yaklich, 833 P.2d 758 (Colo.Ct.App.1991). These
cases involve situations where women who were allegedly battered
by their husbands hired or otherwise persuaded someone to kill
their husbands. Unlike Byrom's case, none of the women in these
cases received the death penalty, and it is unclear from a reading
of these cases if any of these women were even eligible for the
death penalty. In some of the cases there is little or no
analysis of the sentence. We find these cases to be of no
benefit to Byrom.
¶ 62. For these reasons, we find this issue
to be without merit.
VI. WHETHER BYROM IS ENTITLED TO CLAIM
ACTUAL INNOCENCE TO ALL CHARGES LEVIED AGAINST HER BASED ON NEWLY
DISCOVERED EVIDENCE OF CONSTITUTIONAL DIMENSION, NOT KNOWN AT THE
TIME OF THE TRIAL OR ON DIRECT APPEAL, THUS CAUSING THE SAME AS AN
EXEMPTION TO THE PROCEDURAL DEFAULT OF ALL CLAIMS OF A
¶ 63. Byrom next alleges “actual innocence”
to the charges which were brought against her by the State of
Mississippi, and in support of her claim states “her wrongful
conviction is of such constitutional dimension that it
necessitates that this Court extend the actual innocence exemption
to procedural default of constitutional claims contained in her
petition.” Byrom cites several United States Supreme Court and
federal court decisions on the “actual innocence” exception to the
procedural bar raised in successive, abusive or defaulted federal
habeas claims. It is unclear whether Byrom is attempting to add
this argument to the already existing exceptions to the procedural
bar found in Miss.Code Ann. Section 99-39-27(9), or whether she
merely asserts this argument as additional support for state law
statutory exceptions, as actual innocence sounds similar to the
“newly discovered evidence” exception found in Section
¶ 64. A review of our opinion on Byrom's
direct appeal reveals that Byrom did not argue that her conviction
or sentence were against the weight or sufficiency of the
evidence. Any such argument now is thus procedurally barred.
As for her claim of actual innocence, Byrom cites her affidavit,
Exhibit 2 to her petition, which includes the following:
I am innocent of the charges for which I have
been convicted and sentenced. My trial attorneys, in violation
of my fundamental constitutional rights to due process and those
under the Sixth Amendment, provided me with ineffective assistance
of counsel throughout my entire trial.
I did not contract with anyone to kill Edward
Byrom, Sr. Specifically, I did not ask Joey Gillis to kill my
husband. At the time of Edward Sr.'s death, I was a patient at
Iuka Hospital. My physician, Dr. Ben Kitchens, admitted me for
treatment of pneumonia.
My son, Edward Byrom, Jr., offered perjured
testimony in exchange for a plea arrangement that would allow him
to serve a limited number of years in prison and then be released
on post-released (sic) supervision.
Otherwise, Byrom merely states that findings
made by the jury on the factual matters at issue and the judge
during sentencing were wrong. Because Byrom has submitted
nothing new concerning the evidence in this case, and in
considering our analysis of Byrom's ineffective assistance of
counsel claim under Issue I, we find this issue to be without
VII. WHETHER BYROM WAS DENIED HER RIGHTS
GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS
TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE
CUMULATIVE EFFECT OF THE ERRORS AT HER CAPITAL TRIAL.
¶ 65. Although we have found no reversible
error in the guilt phase or the sentencing phase of her trial,
Byrom requests of us that we reverse her conviction and sentence
due to the cumulative effect of certain errors committed during
her trial. We addressed and considered this issue on Byrom's
direct appeal. Byrom, 863 So.2d at 847. Accordingly, Byrom is
now procedurally barred in this PCR proceeding from raising this
issue again, pursuant to Miss.Code Ann. Section 99-39-21(3).
Procedural bar notwithstanding, we address this issue on its
¶ 66. In the past, we have admittedly taken
different approaches in discussing the cumulative effect of trial
errors. In McFee v. State, 511 So.2d 130 (Miss.1987), we stated
that “[a]s there was no reversible error in any part, so there is
no reversible error to the whole.” Id. at 136. On the other
hand, in Jenkins v. State, 607 So.2d 1171 (Miss.1992), we stated
that “errors in the lower court that do not require reversal
standing alone may nonetheless taken cumulatively require
reversal.” Id. at 1183 (citing Griffin v. State, 557 So.2d 542,
553 (Miss.1990)). However, in being confronted with this issue
on Byrom's direct appeal, we stated:
What we wish to clarify here today is that upon
appellate review of cases in which we find harmless error or any
error which is not specifically found to be reversible in and of
itself, we shall have the discretion to determine, on a
case-by-case basis, as to whether such error or errors, although
not reversible when standing alone, may when considered
cumulatively require reversal because of the resulting cumulative
prejudicial effect. That having been said, for the reasons
herein stated, we find that errors as may appear in the record
before us in today's case, are individually harmless beyond a
reasonable doubt, and when taken cumulatively, the effect of all
errors committed during the trial did not deprive Michelle Byrom
of a fundamentally fair and impartial trial. We thus affirm
Byrom's conviction and sentence.
Byrom, 863 So.2d at 847. When we consider the
totality of the record in this case, we conclude that Byrom did
not receive a perfect trial, nor was she entitled to one.
However, we conclude that any error committed during the guilt
and/or sentencing phases of Byrom's trial was harmless beyond a
reasonable doubt, and, even when considering the cumulative effect
of any harmless errors, we find that there was no cumulative
prejudicial effect such that Byrom was denied her right to a
fundamentally fair and impartial trial by both the convicting jury
and the sentencing judge. We thus find this assignment of error
to be without merit.
¶ 67. After a meticulous review of the
record, for the reasons stated, we find no error requiring
vacation of the judgment of conviction and imposition of the death
penalty. Accordingly, for the reasons herein stated, we find
that Michelle Byrom is not entitled to seek post-conviction
relief; therefore, her post-conviction relief motion is denied.
¶ 68. PETITION FOR POST-CONVICTION RELIEF IS
¶ 69. On behalf of the majority, Justice
Carlson's excellent analysis of the assignments of error in this
case are, in my view, exactly correct, with the sole exception of
Michelle Byrom's claim that her counsel was constitutionally
ineffective during the sentencing phase of her trial. I now take
the liberty graciously afforded me by our procedure to document my
views which are contrary to those of the majority.
¶ 70. I begin by stating that I fully concur
with the majority in finding no reversible error in the jury
verdict of guilt. It is only with the sentencing, as it occurred
in this case, that I find constitutional problems.
¶ 71. It is not for me to say whether
Michelle Byrom should be put to death or serve life in prison for
her involvement in the murder of her husband. But the enormous
significance of possible error in ordering the death penalty
requires that we be particularly vigilant in reviewing the record
for possible constitutional error. In this case, Byrom claims
violation of her constitutional right to effective counsel, and to
her right not to be put to death absent a unanimous verdict by
twelve jurors. After careful and repeated review of the record
and applicable law, I find her counsel was constitutionally
ineffective, and I further am of the opinion that, under the
circumstances of the case, the trial judge was without authority
to impose the death penalty. For these reasons, I respectfully
dissent, in part.
Ineffective assistance of counsel.
¶ 72. A criminal defendant's counsel is
ineffective when “counsel's conduct so undermine[s] the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The record, in my view, clearly demonstrates that Michelle Byrom's
counsel was-in the constitutional sense-ineffective during the
sentencing phase of her trial.
¶ 73. It is no small thing for this Court to
conclude that an attorney ineffectively represented a client
charged with a capital crime, particularly when the trial results
in imposition of the death penalty. Nevertheless, justice
requires that we carefully and faithfully require attorneys who
choose to engage in such representation to adhere to strict
standards of competency and skill. As this Court has stated,
“[t]he focus of the inquiry must be whether counsel's assistance
was reasonable considering all the circumstances.” Stringer v.
State, 454 So.2d 468, 477 (Miss.1984). I fully recognize that no
defendant is entitled to a perfect defense, and ineffective
assistance of counsel, in the constitutional sense, requires not
only deficient representation, but also a finding that the
deficiencies resulted in prejudice to the defendant's case.
Strickland, at 687, 104 S.Ct. 2052.
¶ 74. That said, it seems to me almost
elementary that Byrom's counsel was ineffective in this case.
They swore in affidavits that they persuaded Byrom to waive her
to have a jury determine her sentence, even though neither
attorney felt certain that Byrom understood the ramifications of
her decision. Not only did counsel recommend that she allow the
trial judge to decide her punishment, they failed miserably in
presenting mitigating circumstances to the court during the
sentencing phase of the trial. And the mitigating circumstances
in this case were overwhelming.
¶ 75. The physical abuse Byrom suffered from
her husband was no ordinary physical abuse. Not only did she,
for years, suffer severe physical abuse at the hand of her
husband, but she was made by him to have sex with others while he
videotaped. So severe was her abuse, in fact, that for three
years Byrom ingested rat poison to obtain admittance into the
hospital, hoping to and escape the abuse and gain sympathy.
There is no dispute that these things occurred.
¶ 76. In addition to the abuse, Byrom
suffered from numerous health problems including Munchausen
Syndrome, lupus, pneumonia, severe depression, alcohol dependence,
borderline personality disorder, anemia, chronic pain,
hypertension. At the time of her husband's murder, Byrom was on
nine different medications to treat these ailments.
¶ 77. Byrom's childhood was no better than
her married life; perhaps worse. Before running away from home
at age fifteen, she was physically and sexually abused by her
stepfather, who used her as a prostitute.
¶ 78. With what many attorneys would consider
a cornucopia of mitigating circumstances, and with Byrom's life in
the balance, her counsel called no witnesses during the sentencing
phase of her trial. Instead, they placed into evidence only two
medical reports detailing her physical and mental condition, and
nothing more. It completely defies logic and all reasonable
consideration for one to conclude that one trial judge-any trial
judge-would be more likely to find these mitigating factors
compelling than twelve jurors, without a single dissenting voice.
I have attempted to conjure up in my imagination a more
egregious case of ineffective assistance of counsel during the
sentencing phase of a capital case. I cannot.
¶ 79. In recommending that Byrom waive her
so-called right to have a jury hear the mitigating circumstances,
and in presenting to the court little in mitigation of the death
penalty, I believe Byrom's counsel were certainly ineffective. I
further believe justice was subverted in this case. I am
convinced that Byrom's jury was likely to have at least one member
who would be unwilling to agree to the death penalty under the
circumstances of this case.
¶ 80. Finally, I believe the trial judge, who
was forced to sentence Byrom without being fully advised in the
premises, deserved to hear more than a medical recitation of
Byrom's history and circumstances. The trial judge deserved to
hear Byrom describe how, as a child, she was raped and sold as a
prostitute by her stepfather. The trial judge deserved to hear
doctors and other witnesses describe terror which compelled Byrom
to ingest rat poison to escape the abuse she suffered at the hand
of her husband. The trial judge certainly deserved to have more
before him than a mere medical report, before deciding whether
Byrom should be put to death.
Miss.Code Ann. § 99-19-101
¶ 81. Additionally, it is obvious to me that
the trial judge was not authorized by statute to sentence Byrom in
this case. See Miss.Code Ann. § 99-19-101. Our death
sentencing statute requires that defendants who are tried by a
jury must be sentenced by a jury. The only two instances where
the statute grants authority to the trial judge, rather than the
jury, to impose the sentence in a capital case are where the
defendant waived the trial jury or the defendant pleaded guilty to
the crime as charged. Even in those two limited circumstances
the statute provides that a jury should sentence the defendant
unless both the State of Mississippi and the defendant agree in
writing to have the trial judge impose the sentence. Only if
these requirements are met does the statute give the trial judge
the authority to sentence a defendant. Byrom was tried and found
guilty by a jury. She did not waive the trial jury and she did
not plead guilty. We should follow the statute and require that
she be sentenced by a jury.
¶ 82. Sentencing by a jury is not the
defendant's right-but rather a requirement of statute. Neither
of the statutory exceptions which allow the trial judge to impose
the death penalty was present in Byrom's case. Therefore, in my
view, the trial judge lacked statutory authority to impose the
death penalty in this case. Byrom and the State of Mississippi
cannot merely agree for the trial judge to have sentencing
authority where the statute does not give the judge such power.
¶ 83. My view on the interpretation of this
statute is not new. In Bishop v. State, 812 So.2d 934
(Miss.2002), this Court held that Miss.Code Ann. Section 99-19-101
“does not contain a provision for the waiver of a jury during the
sentencing phase of a trial.” Id. at 945. Nevertheless, the
Bishop Court refused to reverse the sentence of death imposed by
the trial judge because “case law and common practice show that
the right to a jury during the sentencing phase may be waived.”
Id. This Court's final determination in Bishop notwithstanding,
it is my firm conviction that neither case law nor common practice
can qualify the trial judge to impose the sentence of death. The
Legislature has the exclusive authority, power and responsibility
to decide who may impose the death penalty. Even assuming
arguendo that a defendant could waive sentencing by the jury, that
does not speak to the questions of who has statutory power to
impose the sentence of death once the jury is waived. As the
Bishop Court concluded, because the statute makes no provision for
such circumstances, who (if not the Legislature) is to say the
trial judge may step in and order someone be put to death?
Although the Bishop Court without statutory authority, would grant
to the trial judge that enormous power based upon “case law and
common practice,” I would not.
¶ 84. Because there is no provision in any
statute which would allow a defendant convicted by a jury to waive
sentencing by a jury and be sentenced to death by a judge, it is
not only patently unwise and ineffective but also unlawful for an
attorney to recommend their client waive sentencing by a jury.
¶ 85. For the reasons stated, I would grant
Byrom's request for post conviction relief and reverse and remand
for re-sentencing by a jury. Even if I am incorrect in my
interpretation of the statute, then this matter should be reversed
and remanded for re-sentencing by the trial court following a
hearing wherein Byrom is afforded the opportunity to fairly
present, through competent counsel, her considerable mitigating
People suffering from this disorder intentionally injure
themselves in an attempt to garner sympathy. However, persons
suffering from this disorder are different from malingerers in
that Munchausen sufferers will be aware of their deceits but
unaware of their motivations.
Byrom also suffers from numerous other ailments, including:
lupus, pneumonia, hip replacement, and severe depression.
Several of her health problems are a direct result of her
ingestion of rat poison.
Gillis claimed throughout that he was not the shooter; however,
no physical evidence was ever discovered to indicate that anyone
else was involved.
The blood was later determined to be his own from the injury to
his knuckles sustained when he punched an interior door after
discovering his father's body.
the affidavits of Wood and Phillips, Byrom's trial attorneys,
state that although Byrom stated that she fully understood the
ramifications of her decision to waive a jury for the sentencing
phase of her trial, they “cannot be certain she did so.” This is
no more than a conclusory statement which does not create the need
for a factual determination via an evidentiary hearing on Byrom's
home video contained scenes depicting Byrom engaged in what she
characterized as “forced sexual acts” at the insistence of her
will be discussed below, having a jury sentence a defendant in a
capital case tried to a jury is not a right, but rather a
CARLSON, Justice, for the Court.
SMITH, C.J., WALLER, P.J., EASLEY AND RANDOLPH,
JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, J. COBB, P.J., JOINS IN PART. DIAZ, J.,
NOT PARTICIPATING.GRAVES, J., JOINS THIS OPINION. COBB, PJ.,
JOINS THIS OPINION IN PART.