Michelle Byrom v. State of Mississippi

• Court: Mississippi Supreme Court
• Decided: November 18, 2000
• Docket: 2003-DR-02503-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-DR-02503-SCT

MICHELLE BYROM

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/18/2000 TRIAL JUDGE: HON. THOMAS J. GARDNER, III COURT FROM WHICH APPEALED: TISHOMINGO COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: LOUWLYNN VANZETTA WILLIAMS ROBERT M. RYAN WILLIAM J. CLAYTON ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR. DISTRICT ATTORNEY: JOHN R. YOUNG NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - POST CONVICTION DISPOSITION: PETITION FOR POST-CONVICTION RELIEF DENIED - 01/19/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶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, 125

S.Ct. 71, 160 L.Ed.2d 40, 73 USLW 3207 (2004).

¶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

2 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 [FN1] 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.[FN2] 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.

[FN1.] 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.

3 [FN2.] 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.

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. [FN3] 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.

[FN3.] Gillis claimed throughout that he was not the shooter; however, no physical evidence was ever discovered to indicate that anyone else was involved.

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. [FN4] Junior was taken into custody to await questioning. He later confessed, implicating himself, Byrom, and Gillis in the murder.

[FN4.] 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.

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.

4 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

5 evidence which would exonerate her; and, (7) the cumulative effect of trial errors denied her

federal and state constitutional rights.

DISCUSSION

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 MISSISSIPPI CONSTITUTION.

¶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 (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, 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 v. Washington, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.

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

6 assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'

Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). 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.

7 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,

8 539 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 venue.

¶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.

9 ¶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 judge.

¶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.

10 ¶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

11 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. 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, 104 S.Ct. 2052. A decision not to investigate thus "must be directly assessed for reasonableness in all the circumstances." Id., at 691, 104 S.Ct. 2052.

Wiggins, 539 U.S. at 533. 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 unreasonable investigation.

¶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.

12 C. Failure of Byrom’s counsel to conduct an adequate investigation in the guilt-innocence and sentencing phases.

¶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

13 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

thath 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

14 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 person.

¶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

15 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

16 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

17 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 trial.

¶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

18 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.

19 ¶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

20 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. “Unless a defendant makes both showings, it cannot be said that the conviction or death

21 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). We thus find Byrom’s argument that she was denied her Sixth Amendment right

to the effective assistance of counsel at her trial is without merit.

II. WHETHER THE ERRORS AND OMISSIONS OF THE TRIAL J U D G E A T S E N T E N C I N G D E N IE D BYROM OF FU N D A M E N T AL CO NST IT UT IO N A L RIGHTS AS GUARANTEED UNDER THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

¶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.

22 (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.

23 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

24 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 the proceedings.

¶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.

1 Both 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 PCR petition.

25 ¶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

26 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:

27 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) (Supp. 2005).

28 III. WHETHER THE INDICTMENT WAS FATALLY DEFECTIVE DUE TO THE FAILURE TO INCLUDE THE STATUTORY A G G R A V A T I N G F A C T O R S , A F F O R D IN G B Y R O M 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 (1999).

¶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 without merit.

¶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

29 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 state.

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

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

2 This home video contained scenes depicting Byrom engaged in what she characterized as “forced sexual acts” at the insistence of her husband.

30 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

V. WHETHER THE DEATH SENTENCE WAS DISPROPORTIONATELY IMPOSED.

¶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 881-83.

31 ¶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 (Miss. 2004).

32 ¶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.

33 ¶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 (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 under Ring.

34 ¶61. Byrom finally cites cases from other states which she claims are more “factually

similar” to her case, including Commonwealth v. Grimshaw, 576 N.E.2d 1374 (Mass. App.

Ct. 1991); State v. Anderson, 785 S.W.2d 596 (Mo. Ct. App. 1990); Boyd v. State, 581 A.2d

1 (Md. 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 CONSTITUTIONAL NATURE.

¶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

35 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 99-39-27(9).

¶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

36 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 merit.

VII. WHETHER BYROM WAS DENIED HER RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AM EN DM EN TS 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 merits.

¶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:

37 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.

CONCLUSION

¶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 DENIED.

38 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.

DICKINSON, JUSTICE, DISSENTING:

¶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.

39 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.

¶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 right3 to have a

3 As 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 statutory requirement.

40 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

41 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

¶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 Byram should

be put to death.

42 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.

43 ¶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.

44 ¶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 circumstances.

GRAVES, J., JOINS THIS OPINION. COBB, PJ., JOINS THIS OPINION IN PART.