Byron Armstrong v. State of Mississippi , 263 So. 3d 1288 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-00547-COA
BYRON ARMSTRONG A/K/A BYRON J. APPELLANT
ARMSTRONG A/K/A BYRON JAMELL
ARMSTRONG
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/16/2017
TRIAL JUDGE: HON. JON MARK WEATHERS
COURT FROM WHICH APPEALED: PERRY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/23/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Byron Armstrong was convicted of murder and possession of a weapon by a convicted
felon. Armstrong was sentenced as a violent habitual offender to two life-without-parole
sentences, with the sentences to be served concurrently in the custody of the Mississippi
Department of Corrections. Finding no arguable issue for appeal, Armstrong’s appellate
counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005). This Court
gave Armstrong additional time to file a supplemental brief, which he has not done.
FACTS
¶2. Armstrong admittedly killed James Hartfield but claimed he did so in necessary self-
defense. Hartfield had confronted Armstrong about a drug sale that had occurred the
previous day. Hartfield felt that Armstrong had not given him all of the pills for which he
had paid. The confrontation occurred at Jerome McLeod’s house. McLeod was Armstrong’s
grandfather, and Armstrong was living with him at the time. McLeod testified that he had
seen Armstrong with a gun sometime during the week prior to Hartfield’s death, but he did
not see Armstrong with the gun on the day of Hartfield’s death. When Hartfield arrived at
the house, McLeod spoke with him, and Hartfield showed him a bag of pills. McLeod
testified that he did not see Hartfield carrying a gun.
¶3. Andrew Krause testified that he drove Hartfield to McLeod’s house to find
Armstrong. Krause, waiting in the car, saw Hartfield knock on the door and then go around
the side of McLeod’s house. A few minutes later, Krause heard several gunshots. Krause
left the scene and called the local authorities.
¶4. When the police arrived, they found Hartfield dead and the gun approximately ten to
fifteen yards away. According to police, Armstrong stated that he threw the gun across the
yard after the shooting. They also found a bag of pills and a cell phone under Hartfield’s
body. Hartfield had three gunshot wounds located in his neck, left arm, and right leg. The
medical examiner described the gunshot wounds as “distant,” or “beyond three and a half to
four feet between the muzzle and the skin.”
¶5. One of the responding officers testified that Armstrong said he got into an altercation
with Hartfield, took Hartfield’s gun, and as he was stumbling backward, shot Hartfield.
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¶6. Armstrong’s sister, “BW,”1 who was ten years old at the time of the shooting, testified
that she saw Armstrong and Hartfield fighting. She then saw Hartfield pull out a gun,
Armstrong take the gun, and Armstrong shoot Hartfield several times.
¶7. At the close of trial, the jury was instructed on deliberate-design murder,
manslaughter, and self-defense but found the evidence supported a murder conviction.
DISCUSSION
¶8. On appeal, where the appellant’s counsel does not find any arguable issues for review,
the Mississippi Supreme Court has instructed:
(1) Counsel must file and serve a brief in compliance with Mississippi Rule of
Appellate Procedure 28(a)(1)-[(5), (8)].
(2) As part of the brief filed in compliance with Rule 28, counsel must certify
that there are no arguable issues supporting the client's appeal, and he or she
has reached this conclusion after scouring the record thoroughly, specifically
examining:
(a) the reason for the arrest and the circumstances surrounding arrest;
(b) any possible violations of the client’s right to counsel;
(c) the entire trial transcript;
(d) all rulings of the trial court;
(e) possible prosecutorial misconduct;
(f) all jury instructions;
(g) all exhibits, whether admitted into evidence or not; and
(h) possible misapplication of the law in sentencing.
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Initials are used to protect the identity of the minor.
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(3) Counsel must then send a copy of the appellate brief to the defendant,
inform the client that counsel could find no arguable issues in the record, and
advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate
court discover any arguable issue in its review of the record, the court must,
if circumstances warrant, require appellate counsel to submit supplemental
briefing on the issue, regardless of the probability of the defendant's success
on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its
merits and render a decision.
Windless v. State, 167 So. 3d 277, 278 (¶5) (Miss. Ct. App. 2015) (quoting Lindsey, 939 So.
2d at 748 (¶18)).
¶9. Here, Armstrong’s appellate counsel complied with the requirements set forth in
Lindsey. After examining the record, she found no arguable issues for appeal. Armstrong’s
counsel sent a copy of the Lindsey brief to Armstrong, advising him that she found no
arguable issues in the record and also informing Armstrong that he had the right to file a pro
se supplemental brief. This Court granted Armstrong an additional forty days to file a pro
se brief, which he has failed to do. Our independent review of the record has not revealed
any arguable issues that would require supplemental briefing. Accordingly, we affirm the
judgment of Armstrong’s conviction and sentence.
¶10. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.
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