Bryan v. Gibson

• Decision Date: 27 December 2001
• Docket Number: No. 00-6090,00-6090
• Citation: 276 F.3d 1163
• Parties: (10th Cir. 2001) ROBERT LEROY BRYAN, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1163

276 F.3d 1163 (10th Cir. 2001)

ROBERT LEROY BRYAN, Petitioner-Appellant, v. GARY GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee.

No. 00-6090

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

December 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. CIV-97-1967-R)

[Copyrighted Material Omitted] Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbison & Lewis (F. Andrew Fugitt, with him on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before KELLY, HENRY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Robert Leroy Bryan appeals the denial of habeas relief, see 28 U.S.C. 2254, from his Oklahoma first degree malice murder conviction and death sentence. On appeal, Bryan challenges the sufficiency of the evidence to convict him, the retrospective determination that he was competent to stand trial, and his attorney's representation. We affirm.

The jury convicted Bryan of murdering his aunt. After finding that Bryan had previously been convicted of a violent felony and was a continuing threat to society, the jury sentenced Bryan to death. The Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, and denied post-conviction relief. See Bryan v. State, 935 P.2d 338 (Okla. Crim. App. 1997); Bryan v. State, 948 P.2d 1230 (Okla. Crim. App.), cert. denied, 522 U.S. 957 (1997).

Bryan then filed his federal habeas petition. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Bryan is entitled to relief only if he can show that the state court's resolution of his claims was "contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent, or represented "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. 2254(d). We presume state court factual findings are correct, absent clear and convincing proof to the contrary. Id. 2254(e)(1). If the state court did not address a claim's merit, however, this court then reviews the district court's legal determinations de novo and its factual findings for clear error. See Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000).

I. Sufficiency of evidence to convict Bryan of first degree malice murder.

Bryan argues the State's primarily circumstantial case was insufficient to support his first degree malice murder conviction. The appropriate inquiry here is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Applying Jackson, the Oklahoma Court of Criminal Appeals held there was sufficient evidence to support Bryan's capital murder conviction. Bryan, 935 P.2d at 358 n.58, 358-59. That determination was reasonable.¹ See, e.g., Romano, 239 F.3d at 1164 (reviewing state court's sufficiency-of-the-evidence determination for reasonableness).

Under Oklahoma law, see Jackson, 443 U.S. at 324 n. 16, "'[a] person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.'" Bland v. State, 4 P.3d 702, 713 (Okla. Crim. App. 2000) (emphasis omitted) (quoting Okla. Stat. tit. 21, 701.7(A)), cert. denied, 531 U.S. 1099 (2001).

Viewed in the light most favorable to the State, see Jackson, 443 U.S. at 319, the trial evidence established the following: Bryan's widowed aunt, Inabel Bryan, disappeared from her home on Saturday, September 11, 1993. A neighbor found tire skid marks left in both the victim's front and back yards. The width between those tracks matched that of a 1986 Lincoln Bryan had rented for that weekend.

The victim's friends and family also found a fresh potted plant in her home. Bryan had bought that plant Saturday afternoon, September 11. Police would later find, near the victim's body, a receipt for that purchase.

Police found the victim's body on Thursday, September 16, on Bryan's parents' rural property, about a quarter of a mile from the home where Bryan lived with his parents. The victim had a pillowcase duct-taped over her head and had died from a gunshot wound to the forehead. There was a single vehicle's tracks through that field. A tire track across a mushroom there had the same tread pattern as the right rear tire on Bryan's rented Lincoln.

Authorities had decided to search that particular field on the Bryan property because, several years earlier, Bryan had solicited an undercover police officer to kidnap and kill a local banker. That failed scheme had involved the same location where police found Ms. Bryan's body.

The previous kidnapping scheme had also included plans to force the banker to sign a number of promissory notes, which Bryan intended to enforce against the banker's estate after his murder. Bryan had further planned to have the banker sign several personal checks, making them payable to Bryan. Likewise, police in this case found in Bryan's bedroom several handwritten promissory notes and agreements purportedly between the victim and Bryan, wherein the victim agreed she owed Bryan millions of dollars as a result of her investment in Bryan's failed businesses. A handwriting expert testified Bryan had written those agreements and had forged the victim's signatures.

Additionally, police found several of the victim's personal checks among Bryan's papers. According to the handwriting expert: The victim had signed one blank check; Bryan had forged the victim's signature on another; and the victim had signed four others, which Bryan had made payable to himself in varying amounts. Police also found the victim's checkbook just outside the Bryan home, burned in a can of ashes.

On September 8, the Wednesday before the victim's disappearance, Bryan had rented the 1986 Lincoln from a local car dealership. When making these arrangements, he had requested a car with a large trunk. He returned the Lincoln on Monday, September 13. Although he could not pay for the car's rental at that time, he did show the car dealership's owner one of the checks signed by the victim and made payable to Bryan.

Police found a hair, similar to the victim's, in that rental car's trunk. They also found grass and vegetation, like that found on the Bryan property, throughout the car's undercarriage. And the fibers lining the car's trunk were similar to those found on the victim's clothes and tape found on or near the victim's body.

In addition, police found a roll of duct tape in Bryan's room which was the same type as tape pieces found near the victim's body, as well as the duct tape holding the pillowcase over the victim's head. An expert testified that the edges of that tape roll taken from Bryan's bedroom matched the edges of one of the pieces of tape found near the body.

The bullet that killed the victim was most probably a .22 caliber bullet. It was also more consistent with CCI ammunition than it was to other brands. In one of the bedrooms in the Bryan home, police found a .22 caliber rifle loaded with one round of CCI ammunition. And, on Saturday night, September 11, a witness had seen what appeared to be that same weapon in the Lincoln's trunk. Officers also found, in Bryan's bedroom, two spent .22 caliber CCI-brand shells, one in Bryan's coveralls and another in his dresser drawer. That rifle had fired both those rounds. In addition, officers found, in Bryan's bedroom, a full box of fifty Winchester .22 caliber bullets, and a partial box of .22 caliber CCI ammunition. And police recovered a .22 caliber CCI bullet from the rental car's floor. A metallurgy study indicated that all the .22 caliber CCI bulletsthe one that killed the victim, the one found in the rental car, and the ones found in the Bryan home were manufactured at the same time and could have come from the same box.

This evidence, although circumstantial, was certainly sufficient to support Bryan's first degree murder conviction. See Rojem v. Gibson, 245 F.3d 1130, 1141 (10th Cir. 2001) (in dicta, determining circumstantial evidence was sufficient to support murder conviction); see also Romano, 239 F.3d at 1164-65. The state appellate court, therefore, reasonably denied Bryan relief on this claim.

II. Competency.

Prior to the murder trial, the state court held a jury trial to determine Bryan's competency. Although the jury found Bryan competent, it did so under an unconstitutional burden of proof. See Cooper v. Oklahoma, 517 U.S. 348, 350, 355-56, 369 (1996). On direct appeal, therefore, the Oklahoma Court of Criminal Appeals remanded Bryan's case for the trial court to determine whether a retrospective competency hearing was feasible. The trial court found that it was and, in 1996, held another competency jury trial. That jury again found that Bryan had been competent to stand trial in January 1995. Here, Bryan challenges the feasibility of that retrospective competency hearing and asserts that he was in fact incompetent at the time of trial.

A. Feasibility of retrospective competency hearing.

Due process mandates that a state provide adequate procedures to prevent prosecuting an incompetent criminal defendant. See, e.g., Medina v. California, 505 U.S. 437, 449, 453 (1992). "Although retrospective competency hearings are disfavored, they are permissible whenever a court can conduct a meaningful hearing to evaluate retrospectively" the defendant's competency. Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999) (quotation omitted); see also McGregor v. Gibson, 248 F.3d 946, 962 (10th Cir. 2001) (en banc). "A...