Bradley v. State, 7 Div. 185

• Decision Date: 29 September 1989
• Docket Number: 7 Div. 185
• Citation: 557 So.2d 1339
• Parties: Danny Joe BRADLEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1339

557 So.2d 1339

Danny Joe BRADLEY v. STATE.

7 Div. 185.

Court of Criminal Appeals of Alabama.

Sept. 29, 1989.

Rehearing Denied Nov. 17, 1989.

Certiorari Denied Feb. 9, 1990

Alabama Supreme Court 89-372.

Joseph M. Maloney, Jacksonville, for appellant.

Don Siegelman, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the circuit court's denial of a petition for post-conviction relief.

In 1983, Danny Joe Bradley was convicted of capital murder and sentenced to death. That conviction and sentence were affirmed on direct appeal. Bradley v. State, 494 So.2d 750 (Ala.Cr.App.1985), affirmed, Ex parte Bradley, 494 So.2d 772 (Ala.1986), cert. denied, Williams v. Ohio, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987).

In 1987, Bradley filed a pro se petition for post-conviction relief under Rule 20, A.R.Cr.P. Temp. After appointment of counsel, Bradley filed two amended petitions. Following four evidentiary hearings, the petition was denied. On this appeal from that denial, Bradley raises two issues: (A) that, pursuant to Rule 20.1(a), he was denied his due process right to a fair trial because of the State's failure to disclose four items of exculpatory evidence prior to his trial as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (B) that, pursuant to Rule 20.1(e), this exculpatory material qualifies as newly discovered evidence, entitling him to a new trial.

I

Bradley claims that the State withheld the following four items of exculpatory information from him: (1) an alleged confession to the murder of the victim, Rhonda Hardin, by Ricky McBrayer; (2) a similar confession by Keith Sanford, (3) a police file "note" implicating Ricky Maxwell, and (4) forensic test results which were either invalid or inconsistent with the conclusion that Bradley alone had sexual contact with the victim prior to her death.

(1) The McBrayer Confession

Bradley's first claim, that the State failed to disclose the existence of a confession by Ricky McBrayer to one Glenn "Coffee" Burns, is procedurally barred from review here. The failure to disclose the alleged McBrayer confession was raised on motion for new trial in 1983 and was addressed by this court on direct appeal in 1985. See Bradley v. State, 494 So.2d at 767-68. "A petitioner will not be given relief under [Rule 20] based upon any ground ... [w]hich was raised or addressed on appeal or in any previous collateral proceeding...." Rule 20.2(a)(4), A.R.Cr.P. Temp.

Furthermore, with regard to the McBrayer confession, the trial judge made the following findings of fact in his order of January 9, 1989, denying the petition:

"At the hearing on this petition, Burns testified as he did at the hearing on the motion for a new trial. Former Piedmont Police Chief David Amberson testified that McBrayer had never confessed to any police officer and there was no reason to arrest McBrayer in connection with the murder of Rhonda Hardin. Amberson had previously testified at the motion for new trial hearing that he had instructed former ABI Agent Dave Dothard and former Piedmont Police Officer Charles Brown to investigate the possibility that McBrayer had been involved in the murder, and that this investigation disclosed that McBrayer was not involved. (R. 478-479)

"Former detective sergeant Charles Brown testified in a deposition, which was stipulated into evidence, that his investigation led him to rule McBrayer out as a suspect in the murder of Rhonda Hardin. Brown also testified that he was aware of 'hard feelings' between Burns and McBrayer at the time Burns made his report to police. Brown testified that he was suspicious of Burns' claim when it was first brought to the police. Brown also testified that McBrayer denied being involved in any way with the murder when questioned following Burns' claim.

"District Attorney Robert Field testified at the evidentiary hearing that there were numerous rumors circling around the community at the time of the offense as to who might have been involved in the murder. Field testified that McBrayer's name came up along with others prior to discovery of all the evidence in the case.

"Rickey McBrayer testified at the evidentiary hearing that the night of the murder, he was at the LaMont Motel in Piedmont with friends. He then traveled into Georgia with a couple of people for about thirty minutes before returning to Piedmont, at about dark. McBrayer testified that he did not know Rhonda Hardin, he was not present when she was killed, and he never told Burns that he killed her. He recalled being questioned by the police some time after the murder. McBrayer testified that he was never alone the night of the murder.

"This Court notes that the parties stipulated into evidence a forensic report that indicates that McBrayer has Type A blood and is a secretor. Based on the forensic evidence presented at petitioner's capital murder trial, McBrayer would have been in the same forensic classification as Gary Hardin, Jimmy Issac, Phillip Manis and Johnny Bishop. (R. 258-259). Consequently, McBrayer would not be a likely suspect in the rape/sodomy of Rhonda Hardin. Petitioner was tested prior to trial and shown to be a non-secretor. (R. 259)

"....

"This Court further finds, after considering the testimony and evidence presented, that there is no merit to Burns' claim that McBrayer confessed to him. This Court finds Burns to be not credible and truthful based on the testimony presented at trial, the hearing on the motion for a new trial and the hearing on this petition. Where Burns' testimony conflicts with that of Amberson and Brown, this Court accepts the testimony of the two former Piedmont police officers as credible and truthful.

"In addition, this Court specifically finds that the Piedmont Police Department did not improperly conceal Burns' identity from trial counsel or improperly inform trial counsel that the confession had been investigated and proved groundless. The appellate courts have affirmed on the disclosure issue and the evidence presented at the evidentiary hearing clearly established that the alleged confession was groundless."

(2) The Sanford Confession

Bradley's second amended petition contained the following allegation:

"That a person by the name of 'Keith Sanford' told an unnamed informant that 'we killed Rhonda, and I'll kill you.' This statement was allegedly made while the said Keith Sanford was intoxicated and while he held a knife to the unnamed informant. This information was reported to the Piedmont Police Department on or about February 15, 1983, but was not reported to the Petitioner's Attorneys upon their request for exculpatory material. Such failure to divulge such information violated Petitioner's right to a fair trial and to due process of law."

In his order denying the petition, the trial court made the following findings of fact regarding this claim:

"Former [Piedmont] investigator Brown testified that an anonymous nineteen-year-old female contacted him by telephone approximately three weeks after the murder and told him that she was in a position of sexual intimacy with Sanford and at some point in the progression of that intimacy she had a change of heart and did not wish to proceed with the act. In an effort to persuade her to continue, Sanford allegedly threatened her with a knife and said he was responsible for Rhonda's death in an effort to coerce her. Brown questioned Sanford about this allegation on two or three occasions, but was unable to develop any information of a 'confirmable nature' linking Sanford to the crime or crime scene. Brown had no further contact with the anonymous informant. Brown therefore dismissed Sanford as a suspect in the murder of Rhonda Hardin.

"A Piedmont Police Department form, Respondent's Exhibit 1 attached to Brown's deposition, indicates that Sanford gave police an alibi for the night of the murder. Sanford testified at the evidentiary hearing that he informed police of his whereabouts the night of the murder. Sanford's testimony was consistent with the information in the police form. Sanford denied knowing the victim or being involved in her death. Sanford denied ever telling anyone that he killed Rhonda Hardin.

"Former ABI investigator Dave Dothard testified that Sanford was not a suspect in the murder. Dothard testified that there was no evidence that Sanford was involved in the murder. Former investigator Brown also testified that Sanford was dismissed as a possible suspect because the investigative leads regarding any speculation on his involvement in the crime had been followed to their fullest extent and had not developed any concrete evidence. Brown said that there were no more leads to be followed regarding Sanford.

"After considering the evidence and hearing the testimony, this Court finds that the allegation concerning Sanford is without merit. There existed no evidence to connect Sanford with the murder. An anonymous phone call without any substantiation was not enough to make Sanford a suspect in this case. The evidence indicates that the police checked Sanford's alibi and dismissed him as a possible suspect after investigation. This Court will not grant relief as to this allegation."

"In order to establish a Brady violation, the defendant must prove (1) The prosecution's suppression of evidence; (2) the favorable character of the suppressed evidence for the defense; (3) the materiality of the suppressed evidence. Monroe v. Blackburn, 607 F.2d 148, 150 (5th Cir.1979) cert. denied, 446 U.S. 957[, 100 S.Ct. 2929, 64 L.Ed.2d 816] (1980). See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Killough v. State, 438 So.2d 311, 316 (Ala.Cr.App.1982), rev'd on other grounds, Ex parte Killough, 438 So.2d 333 (Ala.1983)." Sexton v. State, 529 So.2d 1041, 1045 (Ala.Cr.App.1988). "Pursuant to United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375,...