Ex parte Bradley

• Decision Date: 25 July 1986
• Parties: Ex parte Danny Joe BRADLEY. (Re Danny Joe BRADLEY v. STATE of Alabama). 85-424.
• Court: Alabama Supreme Court

Page 772

494 So.2d 772

Ex parte Danny Joe BRADLEY (Re Danny Joe BRADLEY v. STATE of Alabama).

85-424.

Supreme Court of Alabama.

July 25, 1986.

Rehearing Denied Sept. 12, 1986.

Petition for writ of certiorari to the Court of Criminal Appeals.

Ralph L. Brooks and Thomas E. Dick, Anniston, for petitioner.

Charles A. Graddick, Atty. Gen., and William D. Little and Martha Gail Ingram, Asst. Attys. Gen., for respondent.

PER CURIAM.

This is a death penalty case. Pursuant to statutory mandate (Code 1975, § 13A-5-53) and the rules of this Court (Rule 39, A.R.A.P.), we granted Defendant's petition for review of the Court of Criminal Appeals' affirmance of his conviction and sentence. For a detailed statement of the facts, as well as an at-length treatment of each of nine separate issues, see Bradley v. State, --- So.2d ---- (Ala.Crim.App.1986). After careful review of the entire record of trial, and the Court of Criminal Appeals' opinion, along with the briefs and argument of able and experienced counsel, we are constrained to affirm the Court of Criminal Appeals' judgment upholding the conviction and sentence of death.

AFFIRMED.

TORBERT, C.J., and MADDOX, ^* SHORES, ADAMS and STEAGALL, JJ., concur.

JONES, ALMON, BEATTY and HOUSTON, JJ., dissent.

JONES, Justice (dissenting).

I agree with the Court of Criminal Appeals' opinion on each of the issues addressed therein except one: the failure of the State to make a full disclosure of information known to it pertaining to the report of an alleged confession to the crime made to the investigating police officer by a third party.

The Court of Criminal Appeals' treatment of this issue is contained in Part IV of its opinion. Defendant's counsel address this issue in their brief as follows:

"Appellant does not find fault with the citation of authority used by the Court of Appeals in its decision. Appellant submits, however, the lower court erred in its application of the facts of the case to the law.

"The court found that the State, through Detective Sergeant Brown, had informed defense counsel that Ricky McBrayer had in fact confessed, but that it had been investigated and found to be without grounds and not true. This is not what the facts revealed, and an examination of the record shows that Sergeant Brown's testimony was that he informed counsel of an alleged confession and that the report of the confession, not the confession, was without grounds and not true. What was disclosed to defense counsel indicated that (1) there was no confession, (2) the report of the confession was without grounds, and (3) no disclosure was made that Glenn 'Coffee' Burns was the person to whom the confession had been made. While appellant submits that the lack of disclosure was not intentional prosecutorial misconduct, the evidence not disclosed was material to the guilt or punishment of the appellant, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evidence of a third party's confession is of a nature that should be disclosed and would meet the criteria for a Brady violation, i.e., (1) the prosecution suppressed the evidence, (2) the evidence was of a favorable character to the defense, and (3) the evidence was material. Sellers v. Estelle, 651 F.2d 1074 (5th Cir.1981), cert. den., 455 U.S. 927, 102 S.Ct. 1292, 71 L.Ed.2d 472 (1982); Knight v. State, 478 So.2d 332 (Ala.Cr.App.1985). The evidence suppressed was of a material nature and there certainly is a reasonable possibility that its disclosure would have affected the result of the proceeding. The evidence in this case was entirely circumstantial, as noted by the Court of Criminal Appeals.

"The name of Ricky McBrayer was known to the defense and was the subject of a Motion for Discovery and the subject of their interview with Sgt. Brown. But, again, it must be emphasized that the interview did not reveal that McBrayer had confessed, nor that he had confessed to Glenn Burns. In fact, the context of the interview had the effect of closing the door on further inquiry concerning McBrayer's confession, since Sgt. Brown had indicated that the report of the confession had been found to be untrue. The nature of the evidence suppressed was clearly exculpatory in character and material to the guilt or punishment of the Appellant. The failure of the State to disclose it to the defense rendered a fair trial impossible and a constitutional violation inevitable. The evidence would have created a reasonable doubt as to Appellant's guilt, regardless of whether or not it was trustworthy or admissible.... State v. Kimberly, 463 So.2d 1109 (Ala.1984).

"Appellant also would find error in the lower court's opinion wherein it held that the State's duty to disclose McBrayer's confession did not include the duty to disclose the person to whom the confession was made. Appellant submits that even assuming that the facts were as found by the Court of Appeals, the State would be required under Brady and its progeny to fully disclose the exculpatory evidence." (Emphasis in the original.)

Because the Court of Criminal Appeals' factual statement is placed in issue, I have studied the record for a better understanding of the precise context of Defendant's "newly discovered evidence" ground for a new trial. Initially, I observed that the record of all pre-trial proceedings, as well as the record of trial, is totally silent as to any purported or alleged confession to the crime by any third party. To be sure, as indicated in Defendant's brief, his pre-trial discovery motion, inter alia, requests of the State:

"D. Any and all statements, notes or memorandums of conversations taken when any of the following names were mentioned as suspects or possible suspects: Phil Manis, Robert Roland, Ricky McBrayer, Jimmy Isaac, Johnny Bishop, Diane Mobley, Donald Roberts, Keith Sanford, Phillip Bass, Bill Goodwin and Charlie Grissom."

The trial court granted the motion pursuant to Rule 18, Temporary Rules of Criminal Procedure, but the records and documents turned over to Defendant's counsel contained no reference to any confession or statement by another party admitting guilt. Other than Item D of Defendant's discovery motion, containing the name of Ricky McBrayer as a "possible" suspect the only mention of a third-party confession, including any knowledge thereof on the part of Defendant's counsel, was adduced in an evidentiary hearing on the Defendant's post-judgment motion for a new trial.

Although certain of the testimony at this hearing is not altogether clear and although there are unfilled gaps in the entire sequence of events, I was able to piece together the following scenario: About four days following Rhonda's death, a private citizen, Glenn Burns, accompanied by another private citizen, Fred Baker, reported to Chief of Police Amberson, that he and Ricky McBrayer had met at a bar in Piedmont the third night after Rhonda's death; that, after leaving the bar and while riding in Burns's car, McBrayer told him he had been with Rhonda the night of her death, and that he had accidentally killed her.

According to the post-conviction testimony of the then-former Chief Amberson, he related this information to certain members of the investigative team, who subsequently reported back to him that they were "able through investigation to locate the whereabouts of McBrayer on the night this girl was killed"; and, from their investigation, they concluded that McBrayer was not involved. Neither Amberson nor any other members of the investigative team made any notes or records of either Burns's statement or any of the follow-up investigation or conclusions made therefrom. Nor did he or anyone else to his knowledge inform either the prosecution or the defense counsel of any of these events, conversations, or conclusions; thus, the records and documents released to Defendant's counsel in response to the court's discovery order contained no such information.

Several days before the hearing on the new trial motion, Burns again reported to Piedmont's present Police Chief, Ricky Doyle, the circumstances of McBrayer's "confession." The reason for his second visit, according to Burns, was "[b]ecause [McBrayer] told down at the service station he was going to get me for going around saying he killed the girl." On cross-examination by Defendant's counsel, Burns reiterated that his reason for his second visit to the police station was that he indirectly received a threat from Ricky McBrayer that, if "[I] came down here and testified, he [McBrayer] was going to kill [me]."

The only testimony taken at the first phase of the post-conviction hearing was that of Glenn Burns and former Chief Amberson. It is obvious from his vigorous cross-examination of Burns that the district attorney did not know the source of defense counsel's information concerning Burns's report to the police relating McBrayer's alleged confession. Despite repeated questions from the district attorney seeking a contrary reply, Burns stood fast to his simple unequivocal statement, both as to McBrayer's admission of the crime and that he (Burns) had not given this information to Defendant, Defendant's counsel, or any member of Defendant's family.

Apparently satisfied with Burns's explanation, the district attorney then requested a continuance:

"MR. FIELD: Judge, we have misplaced some information that we had in regard to this case, and it may be of evidentiary value in this particular proceeding. If we find that information, would we have the opportunity to go ahead, and assuming it's relevant and legal evidence, submit it sometime say no later than--

"THE COURT: --Let me ask this. Are you asking the Court in effect to carry this hearing over on the motion for new trial?

"MR. FIELD: Yes, sir; yes, sir, I guess I am."

Thereupon, the motion for continuance was granted from October 27, 1983, to January 3, 1984, at which time ...