Bryan v. State, SC00-335.

• Decision Date: 22 February 2000
• Docket Number: No. SC00-335.,SC00-335.
• Citation: 753 So.2d 1244
• Parties: Anthony Braden BRYAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

753 So.2d 1244

Anthony Braden BRYAN, Appellant, v. STATE of Florida, Appellee.

No. SC00-335.

Supreme Court of Florida.

February 22, 2000.

Gregory C. Smith, Capital Collateral Counsel, Northern Region, and Andrew Thomas, Chief Assistant CCC-NR, Office of the Capital Collateral Counsel—Northern Region, Tallahassee, Florida, for Appellant.

Robert A. Butterworth, Attorney General, Richard B. Martell, Chief, Capital Appeals, and Barbara J. Yates, Assistant Attorney General, Tallahassee, Florida, for Appellee.

PER CURIAM.

Anthony Braden Bryan, a prisoner scheduled for execution on February 24, 2000, has filed an appeal and petition for extraordinary relief challenging the trial court's denial of relief, and requests a stay of execution. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Bryan's convictions and death sentence are described in Bryan v. State, 533 So.2d 744 (Fla.1988).¹ The numerous proceedings before the Florida and Federal courts, including litigation following his two death warrants, are explained in Bryan v. State, 748 So.2d 1003 (Fla.1999).

When Bryan was last before this Court, he filed, among other things, an all-writs petition claiming that death by electrocution was unconstitutional and relied on the dissenting opinions in Provenzano v. Moore, 744 So.2d 413 (Fla.1999). The State responded that the petition should be denied pursuant to the holding in Provenzano, wherein this Court upheld the constitutionality of electrocution. This Court denied Bryan's petition by order on October 20, 1999. See Bryan v. Moore, 744 So.2d 452 (Fla.1999)(unpublished order).

The United States Supreme Court granted Bryan's petition for writ of certiorari on the denial of the all-writs petition on October 26, 1999, but then dismissed certiorari as improvidently granted on January 24, 2000. See Bryan v. Moore, ___ U.S. ___, 120 S.Ct. 394, 145 L.Ed.2d 306 (1999), cert. dismissed, ___ U.S. ___, 120 S.Ct. 1003, 145 L.Ed.2d 927 (2000). On January 26, 2000, the Governor rescheduled Bryan's execution to Thursday, February 24, 2000.

Subsequent to the rescheduling of his execution, Bryan filed in the trial court motions to (1) open and release confidential records pertaining to his trial counsel's treatment for alcoholism; (2) declare unconstitutional public record exemptions contained in section 945.10(1)(e), Florida Statutes (1999), and chapters 2000-2 and 2000-1 of the Laws of Florida; (3) compel public records disclosure regarding lethal injection; (4) find the new lethal injection statute unconstitutional under the Savings Clause of the Florida Constitution; and (5) find that the Department of Corrections' (DOC) failure to disclose information about lethal injection left Bryan unable to make an informed decision as to which execution method he should choose. The trial court held a hearing on Saturday, February 12, 2000, and denied all relief in three written orders and denied rehearing on Friday, February 18, 2000. Bryan appeals the trial court's decision as to the above issues and raises additional claims.

The first issue is whether the trial court abused its discretion in denying Bryan's motion to open and release confidential records pertaining to his trial counsel's treatment for alcoholism. We hold that the trial court properly denied Bryan's motion to open Ted Stokes' treatment records. Section 397.501 of the Florida Statutes provides that alcohol treatment records are confidential, but authorizes the disclosure of the records by court order pursuant to a showing of good cause. See § 397.501(7)(a)5, Fla. Stat. (1999). The alleged good cause in this case is that additional evidence concerning trial counsel's substance abuse would show why trial counsel conducted the defense as he did, thus undermining the perception that his conduct was based on trial strategy. We disposed of a similar claim in Bryan v. State, 748 So.2d 1003, 1004, wherein this Court stated:

Stokes' equivocal recollection that he may have been under the influence outside of trial does not warrant relief. See Kelly v. United States, 820 F.2d 1173, 1176 (11th Cir.1987)("There being no specific evidence that Kermish's drug use or dependency impaired his actual conduct at trial, Kelly has not met his initial burden of showing that Kermish's representation fell below an objective standard of reasonableness. See Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)²].").

Id. Furthermore, in Bryan v. State the Court noted that we affirmed the trial court's determination with respect to ineffective assistance of counsel. 748 So.2d at 1004; see Bryan v. Dugger, 641 So.2d 61, 63-65 (Fla.1994)(this Court affirmed that allegations of guilt-phase ineffectiveness were insufficient to establish a violation of Strickland, and affirmed the trial court's denial of relief as to alleged sentencing-phase ineffectiveness after it held an evidentiary hearing thereon).

This Court's opinion in Bryan v. Dugger reveals that Stokes' performance was thoroughly examined in the postconviction stage and that his performance was not deficient. To that end, the trial court examined whether Stokes erred in "failing to present the mental health defense through live testimony, rather than submitting [experts'] reports prepared for a considered but rejected insanity defense"; allegations that 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"; and Bryan's claim that Stokes' deficient performance in this area was not the result of a strategic decision, but rather a failure to meet a reasonably competent standard of performance. Id. at 63. The trial court explained that at the penalty phase, Stokes called several family members and a former employer to provide evidence of nonstatutory mitigating circumstances. Stokes submitted 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.

Id. at 63. The trial court further explained that "[a]lthough 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." Id. at 64. Finally, the trial court explained:

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 [v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)]. 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.

Id. at 64. This Court found that Stokes did not provide a deficient performance, but rather that obtaining a seven-to-five jury split on the death sentence recommendation was an accomplishment given the evidence of the brutal murder. The Court explained that:

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 either of the statutory mitigators and the other two doctors felt that only one mitigator existed. Each of the medical reports clearly indicated the existence of mental abnormalities, so Stokes was able to persuasively argue both statutory mental mitigators from these reports. The fact that the language of the reports was not couched in the exact terms of statutory mental mitigators does not mean that they were not used effectively.

As for nonmedical evidence, Stokes introduced the testimony of Bryan's mother, grandmother, and aunt as well as his ex-wife, a former employer, and a friend. The evidence supports the trial judge's conclusion that because of alienation between them, not all of the family would present favorable testimony. As noted in Maxwell v. Wainwright:

The fact that a more thorough and detailed presentation could have been made does not establish counsel's performance as deficient. It is almost always possible to imagine a more

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