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Petitioner Marquis Byrd was indicted for first-degree murder, aggravated malicious wounding of another, and for the use of a firearm in both offenses. At a jury trial, he was convicted of second-degree murder and the unlawful wounding of another and use of a firearm in the murder; Petitioner was acquitted of the firearm charge in the wounding case. At the close of the Commonwealth's evidence, defense counsel made a motion to strike, which the court denied. At the close of all evidence, defense counsel failed to renew the motion. Petitioner's trial counsel was given leave to withdraw from the case with respect to sentencing; substitute counsel filed a motion to set aside the verdict, but did not argue it and therefore never obtained a ruling. Petitioner was sentenced to 33 years' imprisonment for the three offenses. The Court of Appeals dismissed petitioner's appeal on grounds that the sufficiency of evidence had not been preserved by either a renewal of the motion to strike or the motion to set aside the verdict. Petitioner sought a writ of habeas corpus in the circuit court, alleging he had been denied his right to effective assistance of counsel at both trial and sentencing. The Supreme Court, in applying Strickland, found that if counsel had performed without any professional errors and petitioner's direct appeal had been available for review, there would be "no reasonable probability that a different result would have been reached." The Court affirmed the judgment of the lower court.Receive FREE Daily Opinion Summaries by Email
Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Russell and Koontz, S.JJ.
MARQUIS DEVON BYRD
SENIOR JUSTICE CHARLES S. RUSSELL
April 21, 2011
GENE M. JOHNSON, DIRECTOR OF THE
VIRGINIA DEPARTMENT OF CORRECTIONS
Record No. 101289
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Nolan B. Dawkins, Judge
This is an appeal from an order dismissing a petition for
It presents questions whether the petitioner
was prejudiced because (a) his trial counsel failed to renew
his motion to strike the evidence at the conclusion of all the
evidence, and (b) his counsel at sentencing failed to obtain a
ruling on his motion to set aside the verdict.
We decide both
questions in the light of the second (“prejudice”) prong of
Strickland v. Washington, 466 U.S. 668, 687, 697 (1984).
Marquis Devon Byrd (the petitioner) was indicted for the
first-degree murder of Al-Rahn Powell, aggravated malicious
wounding of Dennis Wise and use of a firearm in both offenses.
On November 13-15, 2006, at a jury trial in the Circuit Court
of the City of Alexandria he was convicted of the seconddegree murder of Powell, the unlawful wounding of Wise and use
of a firearm in the murder case.
He was acquitted of the
firearm charge in the wounding case.
At the close of the Commonwealth’s evidence, defense
counsel made a motion to strike, which the court denied.
the close of all the evidence, defense counsel failed to renew
the motion to strike.
Petitioner’s trial counsel was given
leave to withdraw from the case and the petitioner retained
substitute counsel to represent him with respect to
Substitute counsel filed a motion to set aside
the verdict but did not argue that motion before the court and
never obtained a ruling on it.
In accordance with the jury’s
verdict, the court sentenced the petitioner to 33 years'
imprisonment for the three offenses of which he had been
convicted, with 13 years suspended.
The Court of Appeals, citing McQuinn v. Commonwealth, 20
Va. App. 753, 757, 460 S.E.2d 624, 626 (1995), and McGee v.
Commonwealth, 4 Va. App. 317, 321, 357 S.E.2d 738, 739-40
(1987), and pursuant to Rule 5A:18, dismissed petitioner's
appeal on the ground that the issue of the sufficiency of the
evidence had not been preserved by either a renewal of the
motion to strike at the conclusion of all the evidence or by a
motion to set aside the verdict.
Byrd v. Commonwealth, Record
No. 1766-07-4, slip op. at 1 (December 28, 2007).
petitioner did not request a review by a panel but filed a
petition for appeal in this Court, which was denied by an
order entered on May 7, 2008.
On May 6, 2009, petitioner filed this petition for a writ
of habeas corpus in the circuit court, alleging that he had
been denied his right to effective assistance of counsel at
both trial and sentencing.
The Attorney General filed a
motion to dismiss the petition.
The court determined that
recorded matters furnished a sufficient basis to decide the
issues without an evidentiary hearing.
By letter opinion
entered on February 18, 2010, the court held that petitioner
had met the requirements of the first (“performance”) prong of
Strickland by showing that the performance of both attorneys
was defective, resulting in the denial of his direct appeal.
The court then turned to consideration of the second
(“prejudice”) prong of Strickland and concluded that the
petitioner had not shown that he suffered prejudice by reason
of counsels' defective performance because the record
demonstrated that, within a reasonable degree of probability,
the outcome of the case would not have been different in the
absence of the defective performance by counsel.
petitioner an appeal, limited to the circuit court’s
application of the second prong of Strickland.
The Criminal Trial
The question whether, within a reasonable degree of
probability, the outcome of the case would have been different
in the absence of counsels’ defective performance can only be
answered, in the procedural posture of this case, by
determining whether the petitioner would have had a reasonable
prospect of success on appeal if the appellate courts had been
able to reach and consider his contention that the evidence
was insufficient to support the verdict, that being the sole
question presented on direct appeal. 1
To answer that question
we must consider the record in the underlying criminal trial.
The evidence was in sharp conflict.
In accordance with
familiar principles, we will state its pertinent parts in the
light most favorable to the Commonwealth, the prevailing party
See, e.g., Preston v. Commonwealth, 281 Va. 52, 57,
704 S.E.2d 127, 129 (2011).
The petitioner was 17 years old at the time of trial.
He had a history of suspensions from school for fighting.
testified that he had been bullied and had begun to carry
firearms for self-protection, although he knew it was unlawful
to do so.
He testified that on one prior occasion, when two
individuals approached him intending to assault him, he
In this appeal, the petitioner presents only the
question whether he was prejudiced by counsels' defective
performance in failing to preserve the issue of the
sufficiency of the evidence for his direct appeal. We
therefore confine our consideration to that issue. Cf.
Elliott v. Warden, 274 Va. 598, 614, 652 S.E.2d 465, 480
(2007) (both the "performance" and "prejudice" prongs of
Strickland were in issue and the petitioner contended that
counsel's errors were prejudicial at trial as well as on
brandished a Glock pistol, and fired it into the air.
served 21 days in juvenile detention for that offense.
About two years before the present offense, the
petitioner had an altercation with Dennis Wise, one of the
victims in the present case.
Without any explanation, the
petitioner pointed a BB gun at Wise, who then punched him.
Because of the petitioner’s fights at school, his mother moved
the family out of Alexandria to Fairfax County.
the petitioner admitted that he continued to return to
Alexandria, making repeated visits to the Cora Kelly
On July 29, 2006, Mrs. Byrd drove her sons Marquis, the
petitioner, and his 14-year-old brother, Malik Byrd (Malik),
She dropped them off at a Metro station where
they could catch a bus to take them to the recreation center
where, they told her, they intended to play basketball.
petitioner was carrying in his waistband, concealed from his
mother, two loaded firearms, a .45 caliber auto-loading pistol
and a .32 caliber revolver that the petitioner had just
obtained that morning.
At the Metro station, the petitioner
surreptitiously handed the .32 caliber revolver to Malik and
told him "I'll get it back later when we get to where we [are]
The petitioner testified that he carried his guns
that day "because anything could happen."
As the brothers walked along Mount Vernon Avenue, Dennis
Wise, then 18 years of age, and 19-year-old Al-Rahn Powell,
were riding their bicycles, traveling the same street in the
Neither of the Byrds knew Powell but the
petitioner knew Wise from their previous encounter, although
they had had no contact for two years.
As the bicyclists
approached the Byrds, the petitioner silently raised his shirt
to display the handle of his pistol.
a real gun.
Wise didn’t think it was
Both bicyclists were unarmed.
“jogged” across the street and entered a barbershop.
followed him but remained in the doorway of the shop.
followed slowly and dismounted.
The petitioner reappeared at
the door of the shop, pointing his pistol straight ahead.
Without speaking, the petitioner fired one shot.
the petitioner from behind, pinning his arms to keep him from
firing any more shots.
The two fell to the street, struggling
for possession of the gun.
During the struggle, the
petitioner shot Wise in both legs, severely injuring him.
While this was taking place, Malik shot Powell in the side of
the head with the .32 caliber revolver.
removed a .32 caliber projectile from Powell’s brain, but he
died of his wound 11 days later.
Malik fired the fatal shot.
The parties stipulate that
After the shootings, the brothers fled the scene
together, running through an alley.
Malik threw the .32
caliber revolver into a trash can but he was seen by a witness
who led the police to it.
events and testified.
Several witnesses observed these
One of them was a customer in a dry-
cleaning establishment adjacent to the barbershop.
He saw two
young men “tussling” on the street and heard shots.
out and saw two individuals holding two guns, both “pointed in
the same general direction, going up the street.”
described the guns, one as a revolver, the other as a
“squarish, more modern type weapon.”
After the shootings, the
witness went outside and saw the two victims lying in the
street but the shooters had fled the scene.
however, knew both Byrd brothers and identified them.
As noted above, the jury convicted the petitioner of
second-degree murder as to Powell, not the first-degree murder
with which he had been charged.
The jury convicted the
petitioner of the use of a firearm in Powell’s murder, but
acquitted him of the firearm count with respect to the
wounding of Wise.
The jury convicted him of the unlawful
wounding, not the malicious wounding of Wise.
are consistent with conclusions by a unanimous jury that (1)
Powell’s killing was malicious but had not been premeditated,
and (2) that the petitioner and Malik had acted in concert
with regard to Powell’s murder or that the petitioner had
participated in some way in bringing it about. 2
The jury was entitled to conclude from the evidence that
the petitioner and his brother were returning to the area of
the petitioner’s earlier fights “looking for trouble;” that
the petitioner and his brother acted in concert with a shared
intent; that the petitioner armed his younger brother to
further their purpose; that the petitioner recognized Wise as
an enemy and that the two brothers shared an intent to harm or
at least intimidate him; and that the petitioner, while not
necessarily intending to kill Powell, nevertheless
participated in bringing the murder about by arming his
brother with a deadly weapon, initiating the fight and firing
the first shot.
Those conclusions would comport with the
following instructions given to the jury:
In order to find Marquis Byrd guilty of second
degree murder, the Commonwealth must prove beyond a
reasonable doubt each of the following elements of
that crime. One, that Al-Rahn Powell was killed;
and two that the killing was malicious; and three
that Marquis Byrd was a principal in the second
degree to the killing. If you find from the
evidence the Commonwealth has proved beyond a
reasonable doubt each of the above elements of the
The petitioner does not contend that counsel were
ineffective in representing him on the wounding and firearms
charges. Our consideration is therefore confined to the
offense as charged, then you shall find Marquis Byrd
guilty of second degree murder . . . .
A principal in the first degree is a person who
actually commits the crime. A principal in the
second degree is a person who is present and assists
by helping in the commission of the crime. It must
be shown that he intended by his word, gestures,
signals, or action to encourage, advise, urge, or
help the person who actually committed the crime, or
he shares a criminal intent of the person who
actually committed the crime.
Presen[ce] and consent alone are not sufficient
to make a person a principal in the second degree.
A principal in the second degree is liable for the
same punishment as the person who actually commits
. . . .
If there is a concert of action with a resulting
crime one of its incidental probable consequences,
then whether such crime was originally contemplated
or not, all who participated in any way in bringing
it about are equally answerable and bound by the
acts of every other person connected with the
consummation of such resulting crime. You may infer
that every person intends the natural and probable
consequences of his acts.
The second prong of Strickland requires a habeas corpus
petitioner to "affirmatively prove prejudice" and to show that
counsel's defective performance "actually had an adverse
effect on the defense."
Strickland, 466 U.S. at 693.
Supreme Court has characterized that requirement as "highly
demanding," and we have similarly described it as a "heavy
Kimmelman v. Morrison, 477 U.S. 365, 382 (1986);
Strickler v. Murray, 249 Va. 120, 128-29, 452 S.E.2d 648, 652
That burden requires the petitioner to establish a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
Strickland, 466 U.S. at 694.
The jury was entitled to accept the Commonwealth's
evidence and to reject the version of events presented by the
defendant at trial.
The version of events presented to the
jury by the Commonwealth's evidence, considered in the light
of the instructions given by the court, fully supports the
If counsel had performed without any professional
errors and the petitioner's direct appeal had been available
for review in the appellate courts free of any procedural bar,
there is no reasonable probability that a different result
would have been reached.
Accordingly, we will affirm the
judgment of the circuit court.