BYRD v. COLLINS et al
Filing
15
MEMORANDUM THAT UPON CAREFUL CONSIDERATION OF BYRD'S OBJECTION TO THE REPORT AND RECOMMENDATION, WE FIND THAT NONE OF THE OBJECTIONS HAS MERIT. CONSEQUENTLY, WE OVERRULE BYRD'S OBJECTIONS AND APPROVE AND ADOPT MAGISTRATE JUDGE RUETER'S REPORT AND RECOMMENDATION.. SIGNED BY HONORABLE JOHN R. PADOVA ON 10/24/11. 10/26/11 ENTERED AND COPIES MAILED TO PETITIONER, E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GLEN BYRD
v.
ROBERT COLLINS, ET AL.
:
:
:
:
:
CIVIL ACTION
NO. 10-2702
MEMORANDUM
Padova, J.
October 24, 2011
Before the Court is Glen Byrd’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. On February 15, 2011, Chief United States Magistrate Judge Thomas J. Rueter filed a
Report and Recommendation that recommends denying the Petition in its entirety. Petitioner has
filed objections to the Report and Recommendation. For the reasons that follow, we overrule
Petitioner’s objections, adopt the Report and Recommendation as set forth herein, and deny the
Petition with prejudice.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On April 5, 2004, a jury convicted Glen Byrd of two counts of first degree murder, carrying
a firearm without a license, and possession of an instrument of crime arising from the January 3,
2001 murders of Lawrence Guillaume and Jamal Small.1 Commonwealth v. Byrd, May Term 2001,
No. 0356-357, slip op. at 1-3 (Phila. Cnty. Ct. of Common Pleas Sept. 2, 2004) (“Byrd I”). The
Pennsylvania Superior Court summarized the testimony of four of the witnesses at Byrd’s trial as
follows. Patricia Kirby testified that Lawrence Guillaume and his sister-in-law Carla were at her
apartment on the night of January 3, 2001. Commonwealth v. Byrd, No. 2723 EDA 2004, slip op.
1
This was Byrd’s second trial. The first trial commenced in October 2002 and the trial court
declared a mistrial after the jury deadlocked. Commonwealth v. Byrd, No. 2723 EDA 2004, slip op.
at 3 (Pa. Super. Ct. Dec. 7, 2005).
at 1 (Pa. Super. Ct. Dec. 7, 2005) (“Byrd II”). Byrd, who was wearing a red hooded sweatshirt and
bright yellow ski jacket, banged on Patricia’s door and asked to speak with Guillaume. Id. at 1-2.
Patricia saw Jamal Small behind Byrd when Guillaume went outside her apartment to speak with
Byrd. Id. at 2. After Patricia went back inside her apartment, she heard a noise that she thought was
gunfire. Id. She went outside and saw Jamal Small “crawling and moaning outside her door.” Id.
She did not see Byrd. Id. After the police and paramedics arrived, Patricia went back outside and
saw Guillaume laying dead in the bushes outside her apartment. Id.
Lavern McCall testified that he knew Byrd and Jamal Small from the neighborhood. Id. On
the night of January 3, 2001, McCall saw Byrd, who was wearing a yellow and red jacket, talking
with Small by the bushes near Patricia’s apartment. Id. (internal quotation marks omitted). A short
time later, McCall saw Byrd and Small standing at Patricia’s open front door, through which he
could also see Guillaume. Id. McCall subsequently heard between four and six gunshots and saw
Byrd walk away from Patricia’s apartment. Id. McCall also testified that he saw a fourth man, Nate,
at Patricia’s door and, “after the gunshots, Nate left the house and walked away quickly.” Id. at 2
n.5.
Leslie Rollins testified that she was Guillaume’s girlfriend. Id. She lived across the street
from Patricia and had known Byrd for years. Id. At 2-3. She was in her home around 11:30 p.m.
on January 3, 2001, when she heard gunshots. Id. at 3. She looked outside her window two or three
seconds later and saw Byrd, “wearing a yellow jacket with a red hood, run on Patricia’s side of the
street.” Id.
Jerome Small, Jamal Small’s brother, testified that he spoke to Byrd shortly after the
shooting. Id. Byrd told Jerome that: “(1) Jamal had brandished a gun; (2) as the men struggled for
2
the gun, [Byrd] shot Lawrence; and (3) [Byrd] did not shoot Jamal.” Id.
The Superior Court also noted that Guillaume was shot five times and was pronounced dead
at the scene. Id. at 3. Small was shot once in the chest and died at the hospital. Id. The police
recovered a gun at the scene. Id. Byrd’s fingerprints were not on the gun. Id.
On April 7, 2004, the jury sentenced Byrd to life imprisonment for each count of first degree
murder. Byrd I at 1. A sentencing hearing was held on May 19, 2004, during which the trial court
sentenced Byrd to two terms of life imprisonment, the trial court did not impose any additional
penalties for Byrd’s other counts of conviction. Id.
Byrd filed a post-sentence motion for relief on May 25, 2004. Id. That Motion was denied
on September 2, 2004. Id. Byrd then appealed to the Pennsylvania Superior Court, which affirmed
his conviction and sentence on December 7, 2005. Byrd II at 1. Byrd’s appeal to the Pennsylvania
Supreme Court was denied on July 26, 2006. Commonwealth v. Byrd, 903 A.2d 536 (Pa. 2006)
(Table).
On January 3, 2007, Byrd filed a pro se petition under Pennsylvania’s Post Conviction Relief
Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. (the “PCRA”). Commonwealth v. Byrd, May Term
2001, No. 0357 1/1, slip op. at 1 (Phila. Cnty. Ct. of Common Pleas Dec. 6, 2007) (“Byrd III”).
Byrd’s attorney filed an amended petition on August 15, 2007. Id. Byrd’s PCRA petition raised two
claims for relief based on the ineffectiveness of his trial counsel: (1) his trial counsel unreasonably
advised him not to testify at this trial, and (2) his trial counsel failed to object to improper remarks
made by the prosecutor during closing arguments. Id. at 2. The trial court found that these claims
lacked merit and dismissed Byrd’s PCRA petition on December 6, 2007. Id. Byrd appealed to the
Pennsylvania Superior Court, which affirmed on September 9, 2009. Commonwealth v. Byrd, No.
3
21 EDA 2008, slip op. at 1 (Pa. Super. Ct. Sept. 9, 2009).
Byrd filed the instant Petition on March 11, 2010. He raises four claims for relief: (1) his
trial counsel was ineffective for advising him not to testify at trial; (2) his trial counsel was
ineffective for failing to object to improper comments and misstatements made by the prosecution
during opening and closing arguments; (3) there was insufficient evidence to support his convictions
for first degree murder and weapons offenses; and (4) the trial court failed to suppress a witness
statement even though the prosecution did not disclose that statement prior to trial. The Magistrate
Judge recommended that the Petition be denied as to all four claims. Byrd objects to the Magistrate
Judge’s recommendations with respect to the first three claims.
II.
STANDARD OF REVIEW
Where a habeas petition has been referred to a magistrate judge for a Report and
Recommendation, the district court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made. . . . [T]he
court may accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 2254(d), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a petition for habeas corpus may
be granted only if (1) the state court’s adjudication of the claim “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States;” or (2) the adjudication resulted in a decision
that was “based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “Factual issues determined by a state court
are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear
4
and convincing evidence.” Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. §
2254(e)(1)).
III.
DISCUSSION
Byrd objects to the Magistrate Judge’s recommendation that we deny his two claims for relief
based on the ineffectiveness of his trial counsel and his claim that the evidence admitted at trial was
insufficient to support his conviction for the first degree murder of Jamal Small.2
A.
Ineffective Assistance of Counsel
A claim for ineffective assistance of counsel is based on the Sixth Amendment right to
counsel, which exists “‘in order to protect the fundamental right to a fair trial.’” Lockhart v.
Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984))
(additional citations omitted). A claim for ineffective assistance of counsel must meet the two-part
test advanced by the Supreme Court in Strickland. First, petitioner must show that counsel
made errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.
Second, [petitioner] must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland, 466 U.S. at 687. More precisely, a petitioner must show that (1) his attorney’s
performance was “unreasonable under prevailing professional norms, and, unless prejudice is
presumed, that (2) there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the
result would have been different.’” United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992) (internal
2
Byrd has not objected to the Magistrate Judge’s recommendation that there was sufficient
evidence to support his conviction for the murder of Lawrence Guillaume and his convictions for
carrying a firearm without a license and possession of an instrument of crime.
5
citation and quotation omitted). The legal standard used by the Pennsylvania courts for analyzing
claims of ineffective assistance of counsel claims is identical to the Strickland standard. Werts, 228
F.3d at 203-04; see also Showers v. Beard, 635 F.3d 625, 630 n.6 (3d Cir. 2011) (citing Werts, 228
F.3d at 203). As a result, Byrd must establish that the Pennsylvania courts’ application of that
standard was “not only erroneous, but objectively unreasonable.” Yarborough v. Gentry, 540 U.S.
1, 5 (2003) (citations omitted).
1.
Decision not to testify at trial
Byrd first claim of ineffective assistance of counsel is based on his trial attorney’s advice that
he (Byrd) not testify at trial. Byrd claims that this advice was unreasonable and prejudiced him
during his second trial, because Jerome Small testified during the second trial that Byrd had
confessed to shooting Guillaume and there were no witnesses who contradicted that testimony. The
PCRA court rejected this claim based on Pennsylvania law which provides that, in order to prevail
on a claim that his counsel was ineffective for interfering with his right to testify, a defendant must
“‘demonstrate either that (1) counsel interfered with his client’s freedom to testify, or (2) he gave
specific advice so unreasonable as to vitiate a knowing and intelligent decision not to testify on his
own behalf.’” Byrd III at 3 (citations omitted); see also Commonwealth v. Miller, 987 A.2d 638,
660 (Pa. 2009) (citing Commonwealth v. Nieves,746 A.2d 1102, 1104 (Pa. 2000), and
Commonwealth v. Uderra, 706 A.2d 334 (Pa. 1998)). The PCRA court found, based on the trial
court’s colloquy of Byrd, that Byrd was aware of his right to testify and had voluntarily chosen not
to testify. Byrd III at 3-4. The PCRA court also found that, since the prosecution’s case was
“substantially comprised of circumstantial evidence, focusing the defendant’s defense on the
Commonwealth’s evidence, in lieu of recommending defendant himself testify, thereby subjecting
6
himself to cross-examination, was a reasonable trial strategy.” Id. at 4-5.
The Magistrate Judge recommends that we deny this claim because Byrd’s decision not to
testify at trial was voluntary. The Magistrate Judge bases his recommendation on the trial court’s
colloquy of Byrd regarding his decision not to testify. (R&R at 16-17.) Byrd stated, during the
colloquy, that he had discussed testifying with his attorney and that he, Byrd, had made the decision
not to testify. Commonwealth v. Byrd, May Term 2001, No. 0356-357, N.T. at 137-39 (Phila. Cnty.
Ct. of Common Pleas Apr. 1, 2004) (“4/1/04 N.T.”).
Byrd does not presently challenge the finding that his decision not to testify at trial was
voluntary. He objects to the Report and Recommendation on the ground that the Magistrate Judge
failed to examine the reasonableness of his trial counsel’s advice that he not testify. Byrd argues
that his counsel’s advice was unreasonable because, in the absence of Byrd’s own testimony, “the
confession attributed to him [by Jerome Small] was permitted to go totally unchallenged.” (Obj. at
6.) Byrd’s argument is, however, insufficient to satisfy the prejudice prong of the Strickland test
because he has not informed the Court of any of the facts to which he would have testified at trial.
See Palmer v. Hendricks, 592 F.3d 386, 394 (3d Cir. 2010) (rejecting Palmer’s claim that his
attorney was ineffective for interfering with his right to testify where Palmer did not inform the court
of any of the facts to which he would have testified, but merely stated “that he would have taken the
stand to testify on [his] own behalf to explain [his] side of what really happened if [he had been]
allowed to do so”) (alterations in original) (internal quotation omitted)). Because Byrd has not
satisfied the prejudice element of the Strickland test, we conclude that he has failed to show that his
trial counsel was ineffective in advising him not to testify.
We further conclude that the
Pennsylvania courts’ application of the Strickland standard to this ineffective assistance of counsel
7
claim was not objectively unreasonable. We therefore overrule Byrd’s objection as his claim that
his trial counsel was ineffective in advising him not to testify at his trial.
2.
Failure to object to prosecutorial misconduct
Byrd’s second claim of ineffective assistance of counsel is based on his trial attorney’s failure
to object to four allegedly improper statements made by the prosecutor during her closing argument.
Two of those statements concern McCall’s testimony about Nate, the fourth man McCall testified
to having seen at the scene of murders. McCall testified at trial that he had seen Nate leaving the
scene after he heard the gunshots. The prosecutor asserted, in her closing argument, that “there is
no Nate” and made a second statement implying that McCall lied about Nate because McCall would
be in danger if his testimony implicated Byrd in the murders. Byrd III at 6 n.2 (internal quotation
omitted). The PCRA court rejected Byrd’s claims that his attorney was ineffective with respect to
the prosecutor’s comments about McCall and Nate because Byrd’s attorney objected to the
prosecutor’s comments regarding Nate and the trial court gave a curative instruction with respect to
the “there is no Nate” remark. Id. at 6. The Magistrate Judge recommends that we deny Byrd’s
ineffective assistance of counsel claim with respect to the McCall and Nate remarks because Byrd’s
trial counsel cannot be found to be ineffective for failing to make objections that he actually made.
The Magistrate Judge further recommends that, under these circumstances, the state court’s
determination that trial counsel was not ineffective in this regard is not contrary to, or an
unreasonable application of, clearly established federal law, or an unreasonable determination of the
facts in light of the evidence presented to the state courts. (R&R at 21.)
Byrd contends that his trial counsel was also ineffective in failing to object to two statements
made by the prosecutor during her closing argument that implied that Byrd was a drug dealer, or had
8
engaged in illegal activity regarding drugs. The prosecutor stated, in her closing argument, that “this
case has drug overtones. It has a drug relationship all over it.” 4/1/04 N.T. at 173. She also
misstated Jerome Small’s testimony, recounting for the jury that Byrd told Jerome that he (Byrd) had
taken Guillaume’s bag. Id. at 161. According to Byrd, that bag contained drugs, implying that he
had a drug related motivation for shooting Guillaume.
The PCRA court rejected Byrd’s claim regarding the prosecutor’s statement that the case “has
drug overtones” because the prosecutor did not characterize Byrd as a drug dealer. Id. at 7. The
Magistrate Judge recommends that trial counsel was not ineffective for failing to object to this
statement because the prosecutor’s drug comments did not amount to prosecutorial misconduct and,
therefore, the state court’s rejection of Byrd’s ineffective assistance of counsel claim related to the
drug comment was not contrary to, or an unreasonable application of, clearly established federal law
or an unreasonable determination of the facts in light of the evidence presented to the state courts.
Byrd did not raise his claim related to the prosecutor’s mischaracterization of Jerome Small’s
testimony before the state court. The Magistrate Judge recommends that this claim is procedurally
defaulted because it was not raised in state court. The Magistrate Judge further recommends that this
claim should be denied on the merits because the prosecutor did not argue that Byrd took
Guillaume’s bag because it contained drugs and, accordingly, did not imply that Byrd had a drug
related motive for shooting Guillaume.
Byrd’s objections to the Magistrate Judge’s recommendations regarding these four aspects
of his ineffective assistance of counsel claim merely restate the arguments he made before the
Magistrate Judge. We have reviewed Byrd’s Amended Petition, his Memorandum of Law, his
Response in Opposition (to the District Attorney’s Response to the Petition), the state court record,
9
and the Report and Recommendation. We conclude that Magistrate Judge fully and correctly
addressed Byrd’s claim that his trial counsel was ineffective in failing to object to these four
comments made by the prosecutor during her closing argument. Byrd’s objection is, therefore,
overruled as to his claim that his trial counsel was ineffective in failing to object to these four
comments.
B.
Insufficient Evidence to Support the Verdict
Byrd’s third claim for relief is that the Commonwealth failed to present sufficient evidence
to prove his guilt of first degree murder beyond a reasonable doubt. A federal habeas court
evaluating a due process claim based upon the sufficiency of the evidence supporting a state court
conviction is not required to reevaluate the evidence for a determination of guilt beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “‘Federal courts are not forums in which
to re-litigate state trials.’” Lonchar v. Thomas, 517 U.S. 314, 340 (1996) (quoting Barefoot v.
Estelle, 463 U.S. 880, 887 (1983)). Rather, it is the responsibility of a federal habeas court to
“ensure that individuals are not imprisoned in violation of the Constitution – not to correct errors of
fact.” Herrera v. Collins, 506 U.S. 390, 400 (1993) (citations omitted).
The Supreme Court has instructed that the proper inquiry to be made is “whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319
(citation omitted). In essence, the Jackson test does not require the federal habeas court to determine
the correctness of the verdict, but to determine whether or not the verdict was rational. Herrera, 506
U.S. at 402. When we conduct this analysis, we apply the sufficiency of the evidence standard
“‘with explicit reference to the substantive elements of the criminal offense as defined by state law.’”
10
Robertson v. Klem, 580 F.3d 159, 165 (3d Cir. 2009) (quoting Jackson, 443 U.S. at 324 n.16).
Under the AEDPA, a federal reviewing court applies a presumption of validity to the factual
findings of the state courts. Steven v. Delaware Corr. Ctr., 295 F.3d 361, 368 (3d Cir. 2002) (citing
28 U.S.C. § 2254(e)(1)). Such a presumption can only be overcome by a showing of clear and
convincing evidence in the record demonstrating the contrary. Id. (citations omitted). When we
apply the Jackson test, we look to the evidence that the state courts considered to be sufficient “to
meet the elements of a crime governed by state law.” Jackson v. Byrd, 105 F.3d 145, 149 (3d Cir.
1997) (citations omitted).
The Pennsylvania Superior Court considered Byrd’s sufficiency of the evidence claim on
direct appeal and applied Pennsylvania law for sufficiency of the evidence as follows: “‘[W]e must
determine whether, viewing all the evidence admitted at trial in the light most favorable to the
Commonwealth, there is sufficient evidence to enable the fact finder to find every element of the
crime beyond a reasonable doubt.’” Byrd II at 5 (alteration in original) (quoting Commonwealth v.
Lyons, 833 A.2d 245, 258 (Pa. Super. Ct. 2003)). We conclude that the legal standard applied by
the Superior Court to Byrd’s challenge to the sufficiency of the evidence is consistent with federal
laws established by the United States Supreme Court.
Under Pennsylvania law, “[a] person is guilty of first-degree murder where the
Commonwealth proves that (1) a human being was unlawfully killed; (2) the person accused is
responsible for the killing; and (3) the accused acted with specific intent to kill.”3 Commonwealth
v. DeJesus, 880 A.2d 608, 611 (Pa. 2005) (citing 18 Pa. Cons. Stat. § 2502 and Commonwealth v.
3
Byrd has not challenged the sufficiency of the evidence underlying his convictions on the
weapons charges in his Objections to the Report and Recommendation. Accordingly, we do not
address those charges in this Memorandum.
11
Spotz, 759 A.2d 1280, 1283 (Pa. 2000)). “An intentional killing is a ‘[k]illing by means of poison,
or by lying in wait, or any other kind of willful, deliberate and premeditated killing.’” Id. (quoting
18 Pa. Cons. Stat. § 2502(d)). “Specific intent to kill can be inferred from the use of a deadly
weapon upon a vital part of the victim’s body.” Id. (citing Commonwealth v. Fletcher, 750 A.2d
261, 267 (Pa. 2000)).
The Superior Court found that the evidence at trial was sufficient to sustain Byrd’s
convictions for first degree murder as follows:
Trial testimony established [Byrd] and Jamal went to
Patricia’s apartment, where Lawrence stepped outside to talk to them.
Three witnesses, from different positions in and around the
apartment, heard gunshots. After the gunshots rang, Jamal was on the
ground and bleeding, and Lawrence was dead; both men were shot.
[Byrd] was seen running away from the scene. Jamal died shortly
thereafter. It is clear that two people were unlawfully killed.
Although there was no testimony of first-hand observation of [Byrd]
shooting the victims, nor were [Byrd]’s fingerprints found on the
recovered gun, the Commonwealth could meet its burden of proving
every element of murder of the first degree with circumstantial
evidence. Viewing this evidence in the light most favorable to the
Commonwealth, we determine the jury could properly infer [Byrd]
shot Lawrence and Jamal. The jury could also infer [Byrd] had
specific intent to kill the victims by determining he shot a gun at vital
parts of Jamal’s and Lawrence’s bodies. Accordingly, we do not
disturb [Byrd]’s conviction of murder of the first degree.
Byrd II at 6-7 (citations and footnote omitted). The Magistrate Judge recommends that the Superior
Court was correct when it determined that the evidence at trial, viewed in the light most favorable
to the Commonwealth, was sufficient to support Byrd’s convictions. (R&R at 30.) The Magistrate
Judge bases this recommendation on the eyewitness testimony of Patricia Kirby, Leslie Rollins, and
Lavern McCall that placed Byrd at the murder scene when the shots were fired. Commonwealth v.
Byrd, No. 0356-357, N.T. at 75-79, 81-82, 87-89, 121-24, 127-28 (Phila. Cnty. Ct. of Common
12
Pleas Mar. 31, 2004) (“3/31/04 N.T.”); 4/1/04 N.T. at 39-53, 64-65.
Byrd objects to the Report and Recommendation on the ground that the evidence at trial was
insufficient to support his conviction of the first degree murder of Jamal Small.4 Byrd contends that
the prosecutor never claimed that he intentionally killed Jamal, but argued, instead, that he
inadvertently shot Jamal while trying to protect him from being harmed by Guillaume. (Obj. at 910.) Byrd argues that, since there is no evidence that he intentionally shot Jamal, the evidence is
insufficient to support the specific intent to kill element of a first degree murder conviction with
respect to Jamal Small. (Id. at 10.)
Byrd’s argument ignores the doctrine of transferred intent and the evidence at trial that
supported his conviction of the first degree murder of Jamal Small pursuant to that doctrine. While
specific intent to kill the victim is an element of first degree murder under Pennsylvania law, see
18 Pa. Cons. Stat. Ann. § 2502(a); DeJesus, 880 A.2d at 611, “under the doctrine of transferred
intent, the intent to murder may be transferred where the person actually killed was not the intended
victim.” Commonwealth v. DeJesus, 787 A.2d 394, 398 (Pa. 2001), abrogated on other grounds as
recognized in Commonwealth v. Cousar, 928 A.2d 1025, 1043 (Pa. 2007) (citing 18 Pa. Cons. Stat.
§ 303(b)(1), Commonwealth v. Gaynor, 648 A.2d 295, 298 (Pa. 1994), and Commonwealth v. Gibbs,
626 A.2d 133, 138 (Pa. 1993)). The doctrine of transferred intent applies even where the intended
victim was killed along with the unintended victim. Sampson v. Grace, Civ. A. No. 06-5331, 2008
WL 687483, at *25 (E.D. Pa. Mar. 11, 2008) (citing DeJesus, 787 A.2d at 398-400). Under
Pennsylvania law, “[i]ntent may be both directed at the intended victim and transferred to the
4
Byrd does not object to the Magistrate Judge’s conclusion that the evidence at trial was
sufficient to support his conviction for the first degree murder of Lawrence Guillaume.
13
unintended victim.” Id. (citing DeJesus, 787 A.2d at 398-400, and Commonwealth v. Bullock, 913
A.2d 207, 218-29 (Pa. 2006)).
The prosecutor sought Byrd’s conviction for Jamal Small’s murder pursuant to the doctrine
of transferred intent. The prosecutor asserted during her closing that Jamal Small was killed because
he got in the way when Byrd was shooting Guillaume: “[Jamal] got shot once, because he was in
the way. He was not the intended target. But he was killed nonetheless.” 4/1/04 N.T. at 162. The
prosecutor then argued that Byrd was guilty of the first degree murder of Jamal Small through the
doctrine of transferred intent:
If you shoot somebody in a vital part of their body with a deadly
weapon, you intend to kill ’em. Well, Larry Guillaume was shot six
times, at least. Look at the number, the number of the times that this
person was shot. You know that whoever it is, the defendant
intended to hill him.
If you find that he had a specific intent to kill him, then the next thing
is the doctrine of transferred intent. Ladies and gentlemen, Jamal
Small got in the way. He wasn’t the intended target, but he was
actually hit. And common sense will tell you that you don’t get a free
killing just because you got bad aim. Common sense.
Id. at 176. The trial court instructed the jury that it could find Byrd guilty of the first degree murder
of Jamal Small pursuant to the doctrine of transferred intent:
If you find beyond a reasonable doubt that the defendant had the
specific intent to kill Lawrence Guillaume and by his actions also
killed Jamal Small as well, you may transfer his specific intent to kill
Lawrence Guillaume to the killing of Jamal Small. That is the
concept of transferred intent, where it is intended that one person is
killed and then another person is killed as well.
Commonwealth v. Byrd, No. 0356-357, N.T. at 21 (Phila. Cnty. Ct. of Common Pleas Apr. 2, 2004).
This jury instruction correctly states Pennsylvania law with regard to the doctrine of transferred
14
intent. See DeJesus, 787 A.2d at 398-400.
Byrd does not object to the Magistrate Judge’s recommendation that the evidence is sufficient
to support his conviction of the first degree murder of Lawrence Guillaume. We have reviewed that
evidence and find that there was evidence presented at trial that Byrd was physically present outside
of Patricia Kirby’s apartment with Jamal Small and Lawrence Guillaume; shots were fired, Small
suffered one gunshot wound to the chest and Guillaume suffered six gunshot wounds; Small and
Guillaume both died as a result of their gunshot wounds; Byrd was seen running away from the
scene; the police recovered two guns at the scene, neither had been fired; the murder weapon was
not recovered; Byrd had one hand in his pocket when he left the scene; and Byrd admitted to Jerome
Small that he killed Guillaume. 3/31/04 N.T. at 75-79, 81-82, 87-89, 121-24, 127-28, 177-83; 4/1/04
N.T. at 13, 16, 18, 20, 39-46, 64, 86-87. Viewing this record in the light most favorable to the
prosecution, we conclude that rational jurors could have found that Byrd was guilty of the first
degree murder of Lawrence Guillaume and that he was guilty of the first degree murder of Jamal
Small pursuant to the doctrine of transferred intent. Byrd’s objection is, therefore, overruled as to
his claim that there was insufficient evidence to support his conviction for the first degree murder
of Jamal Small.
III. CONCLUSION
Upon careful consideration of Byrd’s objections to the Report and Recommendation, we find
that none of the objections has merit. Consequently, we overrule Byrd’s objections and approve and
15
adopt Magistrate Judge Rueter’s Report and Recommendation.
An appropriate Order follows.
BY THE COURT:
/s/ John R. Padova
______________________
John R. Padova, J.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?