Bryan Executed For 1993 Murder
Civil Rights Complaint, Stay Request
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
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
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
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.
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.
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.
* * * *
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,
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
Bryan v. State, 948 P.2d 1230 (Okl.Cr.App.
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
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
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.
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
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
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
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
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
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
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
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.
* * * *
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