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Bryant v. State

Alabama Court of Criminal Appeals

September 5, 2014

Jerry Devane Bryant
v.
State of Alabama

         Editorial Note:

         This Opinion is subject to formal revision before publication in the advanced sheet of the Southern Reporter.

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          Appeal from Houston Circuit Court. (CC-97-403.60).

         KELLUM, Judge. Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

          OPINION

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          On Return to Second Remand

         KELLUM, Judge.

         Jerry Devane Bryant was convicted in 1998 of the murder of Donald Hollis made capital because it was committed during the course of a kidnapping, see § 13A-5-40(a)(1), Ala. Code 1975, and was sentenced to death. This Court affirmed Bryant's conviction and sentence on appeal. See Bryant v. State, 951 So.2d 702 (Ala.Crim.App. 1999) (" Bryant I" ). The Alabama Supreme Court also affirmed Bryant's conviction, but it reversed his death sentence and remanded the case for a new penalty-phase trial. See Ex parte Bryant, 951 So.2d 724 (Ala. 2002) (" Bryant II" ), on remand, Bryant v. State, 951 So.2d 732 (Ala.Crim.App. 2003). After a second penalty-phase trial, Bryant was again sentenced to death, and this Court affirmed his sentence. See Bryant v. State, 951 So.2d 732, 737 (Ala.Crim.App. 2003) (opinion on return to remand) (" Bryant III" ). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on September 29, 2006.

         Bryant timely filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief on September 26, 2007, raising numerous claims, including several claims of ineffective assistance of counsel. He filed an amended petition on March 21, 2008 (hereinafter " first amended petition" ), in which he reasserted the claims raised in his original petition and raised additional claims as well. Bryant also filed a discovery motion, which the circuit court denied. After the State filed an answer and motion to dismiss the first amended petition and Bryant filed a reply to the State's answer and motion to dismiss, the circuit court summarily dismissed Bryant's first amended petition by written order on October 27, 2008.

         On appeal, this Court held that the circuit court had properly summarily dismissed the majority of the claims in Bryant's first amended petition; however, we remanded this case for the circuit court to allow Bryant an opportunity to present evidence to prove the following claims of ineffective assistance of counsel, which we held were sufficiently pleaded and facially meritorious: (1) that trial counsel at his first trial were ineffective for not properly investigating and retaining a blood-spatter expert and a DNA expert; (2) that trial counsel at his first trial were ineffective for not properly investigating and presenting evidence to support a motion to suppress the first statement he made to police; and (3) that trial counsel at his first trial and trial counsel at his second penalty-phase trial were ineffective for failing to adequately impeach Ricky Vickers's testimony and that trial counsel at his second penalty-phase trial were ineffective for failing to adequately challenge Vickers's unavailability. See Bryant v. State, [Ms. CR-08-0405, February 4, 2011] 181 So.3d 1087 (Ala.Crim.App. 2011) (" Bryant IV" ). We also ordered the circuit court to reconsider its denial of Bryant's discovery request as it related to the above-listed claims.

         After the case was remanded, Bryant filed two additional requests for discovery, both of which were denied by the circuit court. Bryant then filed a second amended Rule 32 petition, in which he added additional facts and arguments to several of the claims from his first amended petition, including those claims for which this Court had remanded this case as well as some of the claims that this Court had held had already been properly dismissed. The

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circuit court issued an order on December 28, 2011, striking the second amended petition. On March 1, 2012, the circuit court conducted an evidentiary hearing on the claims of ineffective assistance of counsel listed above, and on October 23, 2012, after the parties had filed post-hearing briefs, the circuit court issued an order denying those claims. We permitted the parties to file briefs on return to remand and heard oral argument on the issues.

         On return to remand, this Court remanded this case a second time for the circuit court to reconsider the claim in Bryant's first amended petition that his trial counsel at his second penalty-phase trial were ineffective for failing to adequately impeach Ricky Vickers's testimony and to issue specific findings of fact regarding that claim. The circuit court complied with this Court's instructions and submitted its return to second remand on May 29, 2014. We permitted the parties to file additional briefs on return to second remand.

         The facts of the crime are fully set out in our opinions in Bryant I and Bryant IV and need not be repeated here.

         Standard of Review

" 'The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.' Davis v. State, 9 So.3d 514, 519 (Ala.Crim.App. 2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.' Wilson v. State, 644 So.2d 1326, 1328 (Ala.Crim.App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that '[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.'"

Wilkerson v. State, 70 So.3d 442, 451 (Ala.Crim.App. 2011).

          " [W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). Also, " where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, ... it is the duty of the appellate court to judge the evidence de novo." Ex parte Horn, 718 So.2d 694, 705 (Ala. 1998). Likewise, when a trial court makes its judgment " based on the cold trial record," the appellate court must review the evidence de novo. Ex parte Hinton, [Ms. 1110129, November 9, 2012] __ So.3d __, __, (Ala. 2012).

         " However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.'" Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App. 1992)). " When conflicting evidence is presented ... a presumption of correctness is applied to the court's factual determinations." State v. Hamlet, 913 So.2d 493, 497 (Ala.Crim.App. 2005). This is true " whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence." Parker Towing Co. v. Triangle Aggregates, Inc., 143 So.3d 159, 166, *14 (Ala. 2013) (citations omitted). " The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. This Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses." Hope v. State, 521 So.2d 1383, 1387 (Ala.Crim.App. 1988). Indeed, it is well settled that, in order to

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be entitled to relief, a postconviction " petitioner must convince the trial judge of the truth of his allegation and the judge must 'believe' the testimony." Summers v. State, 366 So.2d 336, 343 (Ala.Crim.App. 1978). See also Seibert v. State, 343 So.2d 788, 790 (Ala. 1977).

         I.

         We first reconsider one of the claims from Bryant's first amended petition that this Court previously held was properly summarily dismissed -- the claim that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by not turning over to the defense for DNA testing two used condoms found at the scene of Hollis's murder. In Bryant IV, relying on Payne v. State, 791 So.2d 383, 397 (Ala.Crim.App. 1999), this Court held, in part, that Bryant had failed to plead sufficient facts in his petition indicating that the two used condoms constituted newly discovered material facts under Rule 32.1(e), Ala. R. Crim. P., and that, therefore, summary dismissal of this claim was proper. After our opinion in Bryant IV was released, the Alabama Supreme Court issued its decision in Ex parte Beckworth, [Ms. 1091780, July 3, 2013] __ So.3d __, (Ala. 2013), in which that Court held that a Brady claim may be raised under Rule 32.1(a), Ala. R. Crim. P., in which case the petitioner would not be required to meet the requirements for establishing newly discovered material facts under Rule 32.1(e).

         A review of Bryant's first amended petition indicates that he raised his Brady claim under Rule 32.1(a), not under Rule 32.1(e); therefore, our analysis of Bryant's Brady claim under the premise that the claim asserted the existence of newly discovered material facts was in error based on the Alabama Supreme Court's recent holding in Ex parte Beckworth. However, after again reviewing the claim, we find that our ultimate conclusion that the claim was precluded by Rules 32.2(a)(3) and (a)(5) was nonetheless correct.[1]

" To [establish] a Brady violation, a defendant must show that '" (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material to the issues at trial." ' Johnson v. State, 612 So.2d 1288, 1293 (Ala. Cr. App. 1992), quoting Stano v. Dugger, 901 F.2d 898, 899 (11th Cir. 1990), cert. denied, Stano v. Singletary, 516 U.S. 1122, 116 S.Ct. 932, 133 L.Ed.2d 859 (1996). See Smith v. State, 675 So.2d 100 (Ala. Cr. App. 1995). '" The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." ' Johnson, 612 So.2d at 1293, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)."

Freeman v. State, 722 So.2d 806, 810 (Ala.Crim.App. 1998). However, " 'the rule of Brady applies only in situations which involve " discovery after trial of information which had been known to the prosecution but unknown to the defense." '" Bates v. State, 549 So.2d 601, 609 (Ala.Crim.App. 1989)

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(quoting Gardner v. State, 530 So.2d 250, 256 (Ala.Crim.App. 1987), quoting in turn United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) (some emphasis added).

         Although Bryant did not have to allege in his petition sufficient facts indicating that the two used condoms constituted newly discovered material facts under Rule 32.1(e), he did have to allege in his petition sufficient facts indicating that the two used condoms were unknown to the defense and were discovered only after his trial, two necessary requirements to establish a Brady violation. Not only did Bryant fail to plead such facts, he admitted in his first amended petition that the existence of the two used condoms was, in fact, known by the defense at the time of trial.[2] As we stated in Bryant IV, Bryant

" admitted in his [first] amended petition that his counsel at his first trial was, in fact, aware of the existence of the two used condoms -- he stated in his [first] amended petition that his counsel requested discovery of the condoms. Counsel could not very well request discovery of evidence of which counsel was unaware. ... Contrary to Bryant's apparent belief, 'not turn[ing] over' evidence is not the equivalent of suppressing evidence for purposes of Brady."

__ So.3d at __. Based on Bryant's admission in his first amended petition that his counsel were aware of the two used condoms at the time of trial, and that counsel even requested discovery of those condoms, it is clear that Bryant's Brady claim was precluded by Rules 32.2(a)(3) and (a)(5) because it could have been, but was not, raised and addressed at trial and on appeal. Therefore, we again ...


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