Bryan v. Dugger, s. 76684
| Decision Date | 16 June 1994 |
| Docket Number | Nos. 76684,78885,s. 76684 |
| Citation | 641 So.2d 61 |
| Parties | 19 Fla. L. Weekly S328 Anthony B. BRYAN, Petitioner, v. Richard L. DUGGER, etc., Respondent. Anthony Braden BRYAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Michael J. Minerva, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR and Gail E. Anderson, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.
Robert A. Butterworth, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for respondent/appellee.
Anthony Braden Bryan (Bryan), a prisoner under sentence of death, petitions for a writ of habeas corpus and appeals the trial court's denial of relief, after an evidentiary hearing, on Bryan's rule 3.850 motion. 1 We have jurisdiction. Art. V, Sec. 3(b)(1), (9), Fla. Const. We affirm the trial court and deny relief on the writ of habeas corpus.
Bryan robbed, kidnapped, and murdered George Wilson in 1983. Bryan v. State, 533 So.2d 744, 745 (Fla.1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200 (1989). The jury recommended death by a vote of seven to five and the trial judge imposed the recommended sentence, finding six aggravating and two mitigating circumstances. Subsequent to the signing of the death warrant, the trial judge granted a stay and a hearing on Bryant's 3.850 motion. Relief was denied.
Bryan raises twelve issues in his appeal from the denial of his rule 3.850 motion. 2 Issues three through eight and eleven The thrust of the evidentiary hearing in this case was that defense counsel, Ted A. Stokes, did err for failing to present the mental health defense through live testimony, rather than submitting their reports prepared for a considered but rejected insanity defense. Furthermore, it is alleged that Mr. Stokes did not properly prepare the Defendant's family members for their testimony relating to non-statutory mitigating circumstances and that he failed to obtain the testimony of other family members who might give such evidence. It is further argued that Mr. Stokes' deficient performance in this area is not the result of a strategic decision but rather a failure to meet a reasonably competent standard of performance.
which are essentially the same as issues two through eleven in Bryan's habeas corpus petition, are procedurally barred. The deficiencies listed in issue nine do not allege sufficient facts to demonstrate ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Issue ten was addressed on direct appeal. Bryan, 533 So.2d at 748. Bryan cannot now reargue this same claim under a new theory. Quince v. State, 477 So.2d 535, 536 (Fla.1985), cert. denied, 475 U.S. 1132, 106 S.Ct. 1662, 90 L.Ed.2d 204 (1986). Issue twelve, as Bryan concedes, is an aggregate of several issues that have been previously asserted on direct appeal or are currently being raised. Having addressed these issues elsewhere, we find no merit in addressing them now. The only issues that merit discussion are issues one and two in which Bryan asserts that his trial counsel's penalty-phase performance was deficient. In order to prevail on this claim, Bryan must show counsel's deficient performance and a reasonable probability that, but for the deficient performance, the sentence would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Downs v. State, 453 So.2d 1102 (Fla.1984). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Our review of the record and the trial judge's findings of fact indicate that the judge's findings are supported by the record. The findings of fact were as follows
At the penalty phase, Mr. Stokes called several family members as well as a former employer for non-statutory mitigating circumstances. In addition, he admitted into evidence the mental health evaluations of the Defendant prepared by Dr. Barbara Medzerian (two separate evaluations), Dr. Ellen Gentner, Dr. Jose C. Montes, and Dr. Philip B. Phillips. Further admitted were a psychiatric examination from Arizona State Hospital dated 8/6/70, and records from Camelback Psychiatric Hospital 10/10/73, both relating to Jean Hanley, an aunt of the Defendant. Records from Phoenix Baptist Hospital and Medical Center on Keith Hanley, a relative, were also introduced. Copies of these documents are attached to this Order.
Mr. Stokes did not call every member of the Defendant's family as there was at that time some alienation within the family, and some family members were not helpful. The additional testimony from other family members would only have been cumulative. Mr. Stokes talked with several family members on many occasions, even sending an investigator to Arizona to talk with Mr. Bryan's aunt, Jean Hanley, and other persons he had worked for while in Arizona.
Mr. Stokes testified at the evidentiary hearing that he understood his duty in the penalty phase was to humanize the Defendant for the jury. He made a tactical decision not to call Dr. James Larson as a witness as Dr. Larson told him, only moments before he would have testified, that his testimony would not be helpful.
Although live testimony from the other mental health experts might have been helpful to the jury and judge, Mr. Stokes did introduce their written reports. The defense has not been able to present evidence or an argument to support their position that live testimony would have been more persuasive to a jury than the written documents. Further, the decision not to submit the Springfield, Missouri, records was also the result of a tactical decision by Mr. Stokes. None of the mental health experts testified at the evidentiary hearing that their conclusions as to the Defendant's mental state would have been changed through the receipt of the additional information submitted in preparation for this post-conviction relief proceeding.
....
Although in hindsight Mr. Stokes might have presented his case differently to the sentencing jury, this Court does not find that his performance was below the "broad range of reasonably competent performance under prevailing professional standards." Maxwell [490 So.2d 927] at 932. Furthermore, this Court finds that there is no reasonable probability of a different sentencing result had the proffered family background testimony and the live testimony of the mental health experts, both presented at the evidentiary hearing, been offered during the 1986 penalty phase. This conclusion is made also in light of the six aggravating circumstances supported by the record and the Florida Supreme Court on direct appeal.
The record reflects that the judge's findings are based on competent substantial evidence.
This is not a case which defense counsel failed to prepare. Counsel had Bryan examined by seven mental health experts. He did not call Dr. Larson as a witness after the doctor told him that his testimony would not be helpful and that it suggested the possibility of malingering. He had Dr. Gentner under subpoena, but she was out of the state during the trial. Apparently, Dr. Medzerian came to testify in her place but counsel was not aware of her presence.
To introduce the medical reports of certain experts instead of having these experts testify in person was clearly a tactical decision. Several of the doctors indicated that Bryan had no memory of the circumstances surrounding the murder. Bryan, during the guilt phase of the trial and in contravention of the doctors' testimonies, testified in detail about the circumstances surrounding the murder. There was a clear danger that if the doctors were put on the witness stand they would discredit his veracity. Furthermore, of the three doctors who testified at the post-conviction hearing, Dr. Gentner did not believe Bryan met the criteria for...
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