Bryan Executed For 1993 Murder

Courts Reject Civil Rights Complaint, Stay Request

Channel5Oklahoma.com

June 8, 2004

OKLAHOMA CITY -- A man who was convicted in 1995 of killing his aunt was put to death Tuesday at the Oklahoma State Penitentiary. Robert Leroy Bryan was pronounced dead at 7:24 p.m., three minutes after receiving a lethal mixture of drugs.

His execution, originally scheduled to begin at 6 p.m., was delayed until the U.S. Supreme Court could rule on his attorney's petition and application for a stay of execution. The nation's high court denied the requests at 6:46 p.m. CDT. The U.S. District Court in Oklahoma City and the 10th U.S. Circuit Court of Appeals earlier in the day denied Bryan's legal complaint that was filed on grounds that he wasn't competent to be executed. On Monday, the 10th U.S. Circuit Court of Appeals denied an appeal, and the Oklahoma Pardon and Parole Board rejected Bryan's clemency bid on May 20.

Strapped to a gurney, Bryan kept his head turned away from a row of windows so witnesses could not see his face. Much of his last statement was unintelligible, although he spoke of legal proceedings. "I've been on death row for some time," he said. "I made peace with my maker. I will be leaving here shortly. I hope I'll see you on the other side. Until then, so long."

Bryan's chest moved up and down several times as the drugs were administered. His sister, Wilma Wyckoff, sniffled quietly and leaned on her husband's shoulder as they watched the execution. After Bryan was pronounced dead, Wyckoff told her husband, two of Bryan's friends, a minister and an attorney, "He and Nanny (another relative) are probably hugging each other's neck."

A Beckham County jury convicted Bryan, 63, of fatally shooting Mildred Inabell Bryan of Sweetwater in September 1993. Witnesses testified that shortly before the murder, Leroy Bryan wrote agreements and promissory notes and filled out checks to withdraw money from Inabell Bryan's checking account. She signed some of the checks, and he forged her signature at least once on a promissory note for $1,800.

Witnesses also said Leroy Bryan and Inabell Bryan, 69, didn't know each other well. Inabell Bryan's son, Charles Bryan, wrote to the parole board on May 9 that Leroy Bryan's father fought with his brothers and alienated his family from the rest of the Bryans. "We had not visited or had anything to do with Leroy's family for well over 30 years, even though we only lived 25 miles away," Charles Bryan, of Edmond, wrote.

However, Charles Bryan, Inabell Bryan and Leroy Bryan had all seen each other and talked at a family reunion months before Inabell Bryan's murder. "He was so nice, questioning me about my mother and my work," Charles Bryan wrote. "This makes me feel guilty to this very day about anything I might have said without thought."

Charles Bryan; Inabell Bryan's daughter, Linda Daley; and 12 other family members and friends of Inabell Bryan witnessed the execution. They attended to try to gain closure, "if there is such a thing," Charles Bryan said. Daley, of Benton, Ark., said she thought of Leroy Bryan more as a "monster" than as a person.

Inabell Bryan disappeared Sept. 10, 1993, and was found Sept. 16, 1993, near a combine on property near Elk City belonging to Leroy Bryan's parents. The family always wondered what happened in those days, Daley said. "She was almost on death row herself for several days," Daley said. The family hoped Leroy Bryan would admit responsibility Tuesday night for the murder, Daley said. "It was obvious that he didn't think he was the one responsible for the crime," she said.

For his last meal, Bryan requested 10 pieces of fried chicken, barbecue beans, cole slaw, potatoes and gravy, two biscuits and two liters of Dr. Pepper, said Corrections Department spokesman Jerry Massie.

Bryan v. State, 935 P.2d 338 (Okl.Cr. 1997) (Direct Appeal).

Defendant was convicted in the District Court, Beckham County, Charles L. Goodwin, J., of first-degree murder and sentenced to death. Defendant appealed. The Court of Criminal Appeals, Chapel, P.J., held that: (1) defendant's due process rights were not violated by competency proceedings; (2) letters defendant wrote to jail and court officials while incarcerated before trial were not admissible, but error in admitting such letters was harmless; (3) defendant was not in custody so as to trigger Miranda protections when police officers questioned him concerning his aunt's disappearance and murder; (4) defendant's consent to search of his home was voluntary; (5) affidavit established probable cause to search defendant's home for his aunt's promissory notes, checks, and business records; (6) venue was proper; (7) trial judge was not required to recuse himself; (8) evidence concerning defendant's previous conviction for solicitation of murder was admissible to show plan, scheme, or design; (9) prosecutor improperly commented on defendant's failure to testify, but such error was harmless; (10) hair analyst's testimony that hair found in defendant's rental car was consistent with victim's hair was admissible; (11) witness' testimony that, approximately a year before the murder, defendant attempted to hire him to dig three feet by six feet by four feet holes on some farm property was irrelevant to support continuing threat aggravating circumstance, but error in admitting such testimony was harmless; (12) lawyer's testimony that, four years before the murder, after he had successfully represented client in civil suit against defendant, defendant walked up and down sidewalk in front of his office every day for two or three months was irrelevant to support continuing threat aggravating circumstance, but error in admitting such testimony was harmless; (13) evidence of tampering by unknown persons on farm land, three and five years before the murder, was not relevant to any issue during sentencing phase, but error in admitting such evidence was harmless; (14) defense counsel was not ineffective for failing to introduce evidence of mental illness; and (15) evidence in aggravation was sufficient to support death sentence. Affirmed. Lumpkin, J., concurred in result.

CHAPEL, Presiding Judge:

Robert Leroy Bryan was tried by a jury and convicted of Murder in the First Degree in violation of 21 O.S.1991, § 701.7(A) , in the District Court of Beckham County, Case No. CF-93-61. The jury found that Bryan (1) was previously convicted of a felony involving the use or threat of violence, and (2) probably would commit criminal acts of violence that would constitute a continuing threat to society.

In accordance with the jury's recommendation, the Honorable Charles L. Goodwin sentenced Bryan to death. Bryan has perfected his appeal of this conviction and raises nineteen propositions of error. Bryan was convicted of killing his elderly aunt, Inabel Bryan. At the time of the crime, Bryan was in his fifties, suffered from severe diabetes, and lived with his parents at their family farm in Beckham County.

Around September 6, 1993, Bryan arranged to rent a Lincoln Town Car. Bryan specifically requested a car with a large trunk. He rented the car on September 8. Around 2:30 p.m. on Saturday, September 11, Bryan bought a distinctive lavender chrysanthemum plant at the Elk City Homeland grocery store.

That evening a bystander helped Bryan change a tire on the Lincoln and saw a .22 rifle in the trunk. When Bryan returned the Lincoln on September 13, it had a .22 bullet near the driver's seat and grass and weeds stuck in the undercarriage. Bryan could not pay for the car on the 13th, but showed the dealership manager a check for $1680 made out to him by his aunt Inabel. He paid for the car the following day. Bryan and his family agreed that they seldom spoke to Inabel, had not seen her since July 17, 1993, and did not have business dealings with her.

According to the last entry in her diary, on September 11 Inabel woke at her house near Sweetwater in Roger Mills County, did chores, visited with friends, fixed and ate her lunch, studied her Sunday School lesson, picked up the mail, and took a nap. Her daughter, Linda Daley, became alarmed when she could not reach Inabel by telephone on either September 12 or 13.

At the children's request Inabel's neighbor, Don Walker, went to her house twice in the late evening of September 13. Walker found that two throw rugs were disturbed, the living room curtains were open, the bed was unmade and Inabel was not there. He and his wife looked around the outbuildings, in closets and under beds.

The next morning Walker returned and found Inabel's suitcase and a small overnight case containing medicines. Inabel's children, neighbors and law enforcement officials began the first of several searches of the area. Inabel's open diary was found near her reading chair, along with her open Bible and church attendance card filled out for Sunday, September 12. Daley noticed a fresh lavender chrysanthemum plant with no card on a table near the front door.

On September 16, Oklahoma State Bureau of Investigation (OSBI) and FBI agents searched a section of land adjoining the Bryan family farm. Inabel's body was found lying next to a combine in a stand of trees approximately a quarter mile from the Bryan house. Her head was covered with a stained pillowcase, and duct tape was loosely wrapped around her neck. A towel lay across one leg. She had been shot once in the forehead.

Subsequent searches of the site revealed more duct tape, what appeared to be a tape-and-cloth gag, a Homeland floral receipt dated September 11, and a large mushroom with a tire track imprint. During the search agents talked to Bryan, his mother and father; after the body was found the family consented to a search of their house and outbuildings. The house and field were searched again on September 17.

Items found in the house included a .22 rifle with several boxes of shells, several expended shells, a pair of Bryan's overalls with a spent .22 shell casing in the pocket, a roll of duct tape matching tape found at the crime scene, and several blank checks. Also found were checks bearing Inabel's signature made out to Bryan on her account, and many handwritten documents detailing business agreements between Inabel and Bryan in which Inabel agreed to pay Bryan or assign him property.

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In accordance with 21 O.S.1991, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of aggravating circumstances. Upon review of the record, we cannot say the sentence of death was imposed because the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.1991, § 701.13(C).

The jury was instructed on and found the existence of two aggravating circumstances: Bryan (1) was previously convicted of a felony involving the use or threat of violence, and (2) probably would commit criminal acts of violence that would constitute a continuing threat to society. Upon our review of the record, we find the sentence of death to be factually substantiated and appropriate. Finding no error warranting modification, the judgment and sentence of the District Court of Beckham County is AFFIRMED.

Bryan v. State, 948 P.2d 1230 (Okl.Cr.App. 1997) (Postconviction).

Defendant was convicted in the District Court, Beckham County, Charles L. Goodwin, J., of first-degree malice aforethought murder, and sentenced to death. The Court of Criminal Appeals, 935 P.2d 338, affirmed, and defendant applied for postconviction relief. The Court of Criminal Appeals, Chapel, P.J., held that: (1) relief claims based on ineffective assistance were procedurally barred, and (2) defendant was not entitled to evidentiary hearing. Application for postconviction relief denied. Lumpkin, J., filed opinion concurring in result. Lane, J., concurred in result.

CHAPEL, Presiding Judge:
Robert Leroy Bryan was tried by jury before the Honorable Charles L. Goodwin in the District Court of Beckham County. In Case No. CF-93-61 he was convicted of First Degree Malice Aforethought Murder in violation of 21 O.S.1991, § 701.7 . At the conclusion of the first stage of trial, the jury returned a verdict of guilty. During sentencing, the jury found (1) Bryan was previously convicted of a felony involving the use or threat of violence to the person; and (2) there was a probability that Bryan would commit criminal acts of violence that would constitute a continuing threat to society. Bryan was sentenced to death for the murder conviction. Bryan appealed his judgments and sentences to this Court and we affirmed. [FN1] This Court denied Bryan's petition for rehearing. The United States Supreme Court has not yet ruled on Bryan's petition for certiorari, filed September 7, 1997. [FN2]

Bryan v. Mullin, 335 F.3d 1207 (10th Cir. Okla. 2003) (Habeas).

Following state conviction for first-degree murder and sentence of death, affirmed 935 P.2d 338, petition for federal habeas relief was brought. The United States District Court for the Western District of Oklahoma, David L. Russell, J., denied petition. On appeal, the Court of Appeals, 276 F.3d 1163, affirmed. On rehearing en banc, the Court of Appeals, Murphy, Circuit Judge, held that: (1) district court properly granted petitioner an evidentiary hearing on his ineffective assistance of counsel claim; (2) trial counsel lacked the medical evidence necessary to present a viable insanity defense under Oklahoma law; (3) counsel's failure to present, at guilt stage of trial, evidence of petitioner's mental illness in support of either an insanity defense or second-degree murder instruction, was not deficient performance as required to establish an ineffective assistance of counsel claim; and (4) counsel's strategic decision not to present, at penalty stage of trial, evidence of petitioner's mental illness, was reasonable when viewed from counsel's perspective at the time of the trial, and therefore was not deficient performance as required to establish an ineffective assistance of counsel claim. Vacated in part and affirmed in part. Henry, Circuit Judge, filed opinion, concurring in part and dissenting in part, in which Seymour, Ebel, and Lucero, Circuit Judges, joined.

A. Factual Background

The evidence presented at trial linking Bryan to the murder of his aunt, Inabel Bryan, was almost entirely circumstantial. Inabel disappeared from her home in September of 1993. A neighbor found tire marks at Inabel's home matching the tracks of a car Bryan had rented at that time. A potted plant was also found at Inabel's home; Bryan purchased that plant the day Inabel disappeared.

Police found Inabel's body, and a receipt for the purchase of the plant, several days after her disappearance on a parcel of property owned by Bryan's parents. Inabel died from a gunshot wound to the forehead; a pillowcase was duct-taped over her head. There was a single set of vehicle tracks present at the scene; the tracks matched the tread pattern of the right rear tire on Bryan's rental car.

Authorities searched the property where Inabel's body was found because, several years earlier, Bryan had solicited an undercover police officer to kidnap and kill a local banker and dump the body at the same location. This solicitation scheme included plans to force the banker to sign a number of fraudulent promissory notes and personal checks. Similarly, in this case, Bryan possessed several handwritten promissory notes and agreements in which Inabel purportedly agreed she owed him millions of dollars as a result of an investment in his failed businesses.

A handwriting expert testified Bryan wrote the agreements and forged Inabel's signature. Police also found in Bryan's possession several of Inabel's personal checks. According to the expert, Bryan had forged Inabel's signature on one of the checks and had made four others signed by Inabel payable to himself in varying amounts. Police found Inabel's checkbook just outside the Bryan home, burned in a can of ashes.

Before Inabel's disappearance, Bryan rented a car from a local dealership. When making the arrangements, he requested a car with a large trunk. When he returned the car two days after Inabel's disappearance, he could not pay the rental fee. He did, however, show the owner of the dealership one of the forged checks. Police found a hair in the trunk similar to the hair of the victim. They also found grass and vegetation, like that on the property where Inabel's body was discovered, throughout the car's undercarriage. Fibers lining the trunk were similar to those on Inabel's clothes and tape found on or near her body.

Police located additional evidence in Bryan's bedroom tying Bryan to the murder. They discovered a roll of duct tape of the same type as pieces found near Inabel's body and on the pillowcase over her head. An expert testified that the edges of the tape taken from Bryan's bedroom matched the edges of one of the pieces of tape near Inabel's body.

Police also found ammunition in Bryan's bedroom consistent with the type of ammunition used to kill Inabel and consistent with a bullet in the rental car. A metallurgy study indicated that all the bullets--the one that killed Inabel, the one in the rental car, and the ones in the Bryan home--were manufactured at the same time and could have come from the same box.

B. Additional Background

The issues before this court turn on evidence of Bryan's mental health at the time of the murder and the non-use of that evidence during both the guilt and penalty phases of Bryan's trial. As a consequence, some brief additional background is in order.

Bryan has a history of organic brain disease, possibly related to his severe case of diabetes mellitus, dating back to his mid-twenties. In 1989, when Bryan was forty-nine-years-old, he was charged with solicitation of murder relating to the scheme to kidnap and kill the banker described above.

He was initially found incompetent to stand trial and was sent to Eastern State Hospital in March of 1989 for treatment. Bryan was diagnosed as suffering from an organic delusional disorder and was considered severely psychotic at the time of his admission to the hospital. Doctors also discovered that Bryan's brain exhibited significant signs of atrophy. Doctors treated Bryan's diabetes and medicated him with Navane, an antipsychotic drug, until Bryan was determined competent in 1990.

After Bryan was charged in 1993 with Inabel's murder, Bryan's family hired Raymond Munkres to represent Bryan. At the arraignment, Munkres expressed serious doubt as to Bryan's competency and made an oral motion for a competency determination. A jury trial on the question of Bryan's competency was eventually held on December 30, 1993. Because it was beyond the financial resources of Bryan's family, Munkres did not present any medical testimony at the hearing.

Instead, Munkres adduced the testimony of Mike Jackson, an individual who volunteered his services to Munkres as an investigator. The essence of Munkres' presentation at the competency hearing was that Bryan was incompetent because the version of events he described surrounding the murder had no basis in reality, but that Bryan nonetheless sincerely believed in the veracity of his version of events. The jury concluded that Bryan had failed to demonstrate that he was incompetent to undergo further criminal proceedings.

This competency hearing failed to comply with the dictates of the United States Supreme Court's decision in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) , because Bryan was required to prove his incompetence to stand trial by clear and convincing evidence. See Bryan I, 935 P.2d at 347. Accordingly, a retrospective competency hearing was conducted in 1996 utilizing the proper preponderance-of-the-evidence standard; Bryan was also found competent during this proceeding. See id.; Bryan III, 276 F.3d at 1168-72.

On January 3, 1994, just four days after the competency trial was completed, Bryan filed a letter with the trial court indicating as follows: "I wish to advise the court that as [of] this date I am dismissing my attorney of record because of philosophical differences in how this case should proceed in my best and most aggressive defense to the charges leveled against me." The trial court allowed Munkres to withdraw from the case and appointed the Oklahoma Indigent Defense System ("OIDS") to represent Bryan.

Wesley Gibson of the OIDS replaced Munkres as Bryan's attorney. Like Munkres, Gibson could not verify Bryan's version of the events surrounding the murder. Gibson hired Dr. J.R. Smith, a board-certified psychiatrist, to evaluate Bryan. It was Dr. Smith's opinion that Bryan's "delusional system and circumstantiality of thought (as well as the fluctuating blood sugar levels) affect his ability to assist his attorney in his own defense. He produces volumes of information that are irrelevant and often erroneous (but believed by the patient)."

Based on the information provided by Dr. Smith, Gibson requested a second competency hearing. At a hearing on the application, the trial court considered the testimony of Gibson and the sheriff in charge of the jail where Bryan was housed, as well as the affidavit of Dr. Smith. The trial court denied the application for a new competency hearing, concluding that there was no doubt that Bryan was then competent.

Gibson continued to represent Bryan until May of 1994, when he had a slight stroke. He was replaced by Steven Hess, also of the OIDS. Hess continued to consult medical experts and hired Dr. Philip Murphy, a clinical psychologist, to evaluate Bryan. Based on an evaluation which included numerous psychological tests and a review of relevant medical records, Dr. Murphy concluded as follows: "Mr. Bryan suffers from a serious mental disorder which places into serious question his competence to stand trial, as well as his legal culpability in the crimes for which he is charged."

Based on the opinions expressed by Drs. Smith and Murphy, and the two unsuccessful attempts to challenge Bryan's competency, Hess thought it was in Bryan's best interest to utilize an insanity defense rather than to continue to litigate the competency issue.

Accordingly, Hess filed a notice of intent to rely on the insanity defense and a witness list setting out expert witnesses, including particularly Drs. Smith and Murphy, in support of such a defense. When Hess informed Bryan and his parents that he intended to utilize an insanity defense, both Bryan and his parents expressed their disapproval. Shortly thereafter, Bryan and his parents informed Hess that he would be replaced by privately retained counsel. In so doing, they indicated that Hess was being replaced because he had filed the notice to rely on an insanity defense.

Hess was replaced by Jack Freeman. Freeman contacted Hess and indicated that he would be Hess' replacement. He also set up a meeting with Hess and the medical experts. Hess turned over Bryan's file to Freeman, including all of the records and expert reports on Bryan's mental health. Freeman did not ultimately present any mental health evidence during either the guilt or penalty phase of Bryan's trial, although he arranged for Dr. Murphy to be available in case his testimony would be helpful during the guilt phase of the trial.

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IV. CONCLUSION

This court cannot say, under the facts set out above, that Freeman's strategic choice not to present mental health evidence during Bryan's trial was objectively unreasonable. "There are countless ways to provide effective assistance in any given case." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; We are mindful that it is "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Thus, "in considering claims of ineffective assistance of counsel, we address not what is prudent or [even] appropriate, but only what is constitutionally compelled." Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (quotation omitted). In this case, Bryan has failed to establish that "in light of all the circumstances, [counsel's] identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052

HENRY , J., concurring in part and dissenting in part; Judges SEYMOUR, EBEL , and LUCERO, join.

Robert Leroy Bryan