Friday, April 07, 2000
Death for killer upheld
BY BEN L. KAUFMAN
The Cincinnati Enquirer
A divided federal court Thursday upheld the death penalty for the man convicted of stabbing convenience store clerk Monte B. Tewksbury to death as he stood, arms upraised, after surrendering the store's cash.
Two judges of the U.S. Court of Appeals for the 6th Circuit found no reversible error in John W. Byrd Jr.'s 1983 trial and appeals in state court.
However, a third judge said the same facts proved that a “grievous breakdown” in the justice system put Mr. Byrd on Ohio's death row.
Mr. Byrd is in no imminent danger of execution. No execution date has been set since he came within about five hours of death in the electric chair at Lucasville on March 14, 1994.
At that time, state appellate judges in Cincinnati halted the execution and sent the death sentence back to the trial judge for reconsideration.
The next steps include an execution date to be set by the Ohio Supreme Court and the automatic appeal to the U.S. Supreme Court.
Mr. Byrd's public defender, Richard J. Vickers, said he was too busy to comment.
Mr. Tewksbury was alone the night of April 17, 1983, in the King Kwik at 9870 Pippin Road, Colerain Township, when two masked men robbed him and the store. Mr. Tewks bury did not resist.
“Then, as Monte stood with his hands raised and his back to the robbers, (Mr. Byrd) plunged his Bowie knife to the hilt in Monte's side,” Judge Richard Suhrheinrich wrote for himself and Judge Alice Batchelder.
Mr. Tewksbury bled to death, but not before his wife rushed to the store and held the dying man. “Thank God I didn't see it coming,” he told her, expressing puzzlement at the attack after giving the robbers everything they asked.
Mr. Byrd's co-defendant in the robberies was not charged with the murder.
Central to the conviction in Hamilton County Common Pleas Court was testimony of Ronald Armstead, a jailhouse snitch.
Mr. Armstead, an inmate in the now-demolished Cincinnati Correctional Institute in Camp Washington, said 19-year-old Mr. Byrd bragged about killing Mr. Tewksbury because he had “gotten in the way.”
Mr. Byrd's federal appeal included a variety of challenges typical to death sentence challenges: false or insufficient testimony, ineffective at torneys, prosecutorial misconduct, etc.
Judges Suhrheinrich and Batchelder rejected all of the claims.
They found no evidence that Mr. Armstead perjured himself or testified in exchange for lenient treatment.
The judges said that whatever mistakes defense attorneys made in the trial and state appeals, the lawyers did not violate Mr. Byrd's right to effective counsel.
And potentially prejudicial statements by the prosecutor were such a tiny part of the closing argument that any impact was minimal, the two judges said in their 89-page opinion.
“Our sole responsibility is to ensure that (Mr. Byrd's) conviction and death sentence comport with the requirements of our Constitution,” Judges Suhrheinrich and Batchelder said. “We are confident that they do.”
Dissenting Judge Nathaniel R. Jones said “it is beyond refutation that the State secured Byrd's death sentence in contravention of fundamental constitutional guarantees of due process, fundamental fairness and effective assistance of counsel.”
Anything less than a reversal of the conviction and sentence — or at least a chance for Mr. Byrd's new lawyers to research the case further — would be a “gross and irrevocable miscarriage of justice.”
The prosecutor did not disclose that “star witness” Mr. Armstead had a pending parole violation hearing with a possible 15 years in prison if it went badly, Judge Jones said, and the prosecutor knew or should have known that Mr. Armstead lied when he told jurors, “I don't have no more cases pending.”
Only after that “false and misleading testimony” did the prosecutor drop his vehement opposition to Mr. Armstead's early parole, Judge Jones said.
Maybe candor would not have affected the verdict, Judge Jones said, but the lies undermined confidence in the conviction and jury recommendation for death.
Judge Jones said the prosecutor's “egregious, astonishing and inexecusable” vouching for Mr. Armstead's credibility was the kind of misconduct that adds up to reversible error, especially given the poverty of corroborating evidence to pin the killing on Mr. Byrd.
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