Bryant v. State

• Decision Date: 04 February 2011
• Docket Number: CR–08–0405.
• Citation: 181 So.3d 1087
• Parties: Jerry Devane BRYANT v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

181 So.3d 1087

Jerry Devane BRYANT

v.STATE of Alabama.

CR–08–0405.

Court of Criminal Appeals of Alabama.

Feb. 4, 2011.

Opinion on Return to Second Remand Sept. 5, 2014.

Rehearing Denied Nov. 21, 2014.

Certiorari Denied May 22, 2015

Alabama Supreme Court 1140203.

Barry Johnson Parker, Mobile; Tamra Domeyer, Warrenville, IL; John Gallo and Serena B. Lee, Chicago, IL; Glenn Newman, Chicago, IL; and Emily Caveness, San Francisco, CA, for appellant.

Troy King, atty. gen., and Thomas Govan, Jr., asst. atty. gen., for appellee.

KELLUM, Judge.

Jerry Devane Bryant, an inmate on death row at Holman Correctional Facility, appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In 1998, Bryant was convicted 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 direct appeal. Bryant v. State, 951 So.2d 702 (Ala.Crim.App.1999). The Alabama Supreme Court affirmed Bryant's conviction, but reversed his death sentence, and remanded the case to this Court to remand the case to the trial court for a new penalty-phase trial. Ex parte Bryant, 951 So.2d 724 (Ala.2002). In accordance with the Supreme Court's instructions, this Court remanded the case for a new penalty-phase trial. Bryant v. State, 951 So.2d 732 (Ala.Crim.App.2003). After a new penalty-phase trial, Bryant was again sentenced to death, and this Court affirmed his sentence. Id. (opinion on return to remand). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on September 29, 2006. The United States Supreme Court subsequently denied certiorari review on April 2, 2007. Bryant v. Alabama, 549 U.S. 1324, 127 S.Ct. 1909, 167 L.Ed.2d 569 (2007).

Bryant timely filed his Rule 32 petition on September 26, 2007, raising numerous claims, including several claims of ineffective assistance of counsel. The State filed an answer and a motion to dismiss Bryant's petition on January 10, 2008. On February 21, 2008, Bryant filed a "Motion for Discovery of Institutional Files, Records, and Information Necessary to a Fair Rule 32 Evidentiary Hearing," wherein he requested numerous items. (C. 389.) The circuit court denied the request on February 26, 2008, with a notation on the case-action summary stating "Motion denied. This is postjudgment not pretrial." (C. 426.) Bryant filed an amended petition on March 21, 2008, in which he reasserted the claims raised in his original petition, expanding on some of them with additional factual pleadings, and raised additional claims as well. The State filed an answer and a motion to dismiss the amended petition on May 21, 2008. Bryant filed a response to the State's answer and motion to dismiss on August 21, 2008, and on October 3, 2008, he filed a motion for reconsideration of his discovery request, which motion was denied by the circuit court on October 13, 2008, with a notation on the case-action summary simply stating "Motion to Reconsider Discovery Order denied." (C. 756.) On October 27, 2008, the circuit court issued an order summarily dismissing all the claims in Bryant's amended petition¹ on the grounds that the claims were insufficiently pleaded, were meritless on their face, or were procedurally barred. Bryant filed a motion to reconsider on November 21, 2008, which the circuit court denied on December 3, 2008. Bryant filed a notice of appeal on December 4, 2008.

In our original opinion affirming Bryant's conviction and the death sentence initially imposed, this Court set out the facts of the crime as follows:

"The State's evidence tended to show the following. On January 27, 1997, Donald Hollis and his cousin Bert Brantley drove from Newville to an Auto Zone automobile parts store in Dothan, where Brantley purchased transmission fluid sealer to repair his car. Brantley testified that he and Hollis left Newville in Hollis's car at approximately 7:00 p.m. After leaving Auto Zone, at about 8:00 p.m., Hollis and Brantley were driving down Wheat Street in Dothan when they heard someone whistle at them. Brantley testified that Hollis turned his car around and then stopped, and that Bryant and another man, Ricky Vickers, approached the car. Soon after, Vickers left, and Hollis, Brantley, and Bryant had a conversation. According to Brantley, Bryant asked him and Hollis if they had been drinking, and Hollis said that they had not, but that he would go buy some beer. Bryant told Hollis to get the beer and to come back and pick him up in 30 minutes. After buying the beer, Hollis returned and picked up Bryant, and the three men drove around while Brantley and Bryant drank beer.

"Brantley testified that they drove to his house in Newville, where the three of them went inside, drank beer, and talked. Brantley said that Bryant mentioned doing some drugs, but that Hollis and Brantley told Bryant that they did not do drugs. The three men then left Brantley's house and drove back to Dothan. After driving around Dothan for a while, Hollis drove Bryant back to the house where they had picked him up. Brantley testified that when they reached the house, Bryant did not get out of the car and that Bryant said he had something he wanted to talk to Hollis about. Hollis asked Bryant what it was, but Bryant did not say anything. Brantley further testified that he said he would turn his head and look out the window while Bryant talked to Hollis. Brantley said that he then heard a gasp, and when he turned back around, Bryant, who was in the backseat, was holding a gun to Hollis's head. According to Brantley, Bryant said, ‘This is what it's all about.’ (R. 458.) Bryant told Brantley to get out of the car. Brantley initially refused, but when Bryant became angry and said to him, ‘Nigger, get out of the car,’ Brantley got out of the car and stood beside the passenger's door for several minutes. (R. 459.) Hollis then rolled down his window and told Brantley that he would be back in a few minutes. Hollis and Bryant drove off.

"Brantley testified that he waited around 10 minutes for Hollis to return, but that he got scared and walked to a service station down the road. Brantley used the telephone at the service station to call his sister to come and pick him up. Brantley also tried to reach Hollis by calling him on Hollis's cellular telephone. Brantley testified that Bryant answered the telephone and told Brantley that Hollis was with Bryant's brother. Bryant wanted to know where Brantley was so that he could come and get him. Brantley called Hollis's cellular telephone several more times; each time he got Bryant. Brantley told Bryant that he was going to telephone the police, and Bryant said that he did not want any trouble. Brantley's sister then arrived to pick Brantley up, and they telephoned the police.

"Ricky Vickers testified that on the evening of January 27, 1997, he saw Bryant leave with Hollis in Hollis's car. Vickers testified that later that same night Bryant returned to his house in Hollis's car, but that Bryant was alone. Vickers later went riding with Bryant in the car, and Bryant told Vickers that Hollis was with a friend of Bryant's. Bryant and Vickers went to ‘Mickey's,’ a nightclub. When Bryant and Vickers left the club, the police were standing around Hollis's car. Vickers walked off, and Bryant picked him up several blocks away from the club in Hollis's car. Vickers testified that Bryant had said he wanted him to help him do something. Vickers stated that Bryant told him that Bryant had done something, and that he ‘had to kill the victim.’ (R. 524.) Vickers testified that Bryant had a gun and told him that if he did not help him, he was ‘going to do Vickers.’ (R. 526.) The two men then went back to Vickers's house, where they each got a pair of gloves. Bryant then drove to where Hollis's body was located. Vickers testified that after Bryant put some clothes and towels in the trunk of Hollis's car, they put Hollis's body in the trunk.

"Vickers testified that he and Bryant drove to Greenwood, Florida, to the home of Raymond Mathis. Mathis rode around with Bryant and Vickers in Hollis's car, and Bryant and Mathis discussed selling Hollis's cellular telephone. According to Vickers, Mathis said that he knew someone who would give them crack in exchange for the cellular telephone. After Bryant traded Hollis's cellular telephone for crack, the men returned to Mathis's house, and Bryant told Mathis that there was a body in the trunk. Bryant wanted to know where he could dump the body. Bryant, Vickers, and Mathis left Mathis's house, drove down a dirt road, and dumped Hollis's body. Bryant and Vickers then drove to Tallahassee, Florida, where they tried unsuccessfully to sell Hollis's car. Bryant and Vickers returned to Dothan, and abandoned Hollis's car, after cleaning the inside and wiping away any fingerprints. Vickers testified that they then looked for the ‘other guy’ (Brantley) because Bryant believed that Brantley could identify him. According to Vickers, Bryant planned to kill Brantley. Raymond Mathis testified to essentially the same facts as did Vickers.

"Lori Ann Andrews, Bryant's girlfriend, testified that on January 29, 1997, Bryant and Vickers arrived at her apartment in a black car that she had never seen before. Bryant asked her if she would pick him up at his mother's house in a few minutes. Bryant and Vickers left, and Andrews picked Bryant up as he had requested, and they went back to her apartment. Andrews further testified that the police came to her apartment to arrest Bryant that evening, and that when they knocked on the door, Bryant tried to give her a set of keys. The keys were later identified at trial as belonging to Hollis.

"Testimony at trial further revealed that a bloodstain on Bryant's blue jeans was consistent with a mixture of Bryant's blood and Hollis's

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