Arthur Bryant v. Richard Brown ( 2017 )


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  •                                  In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 15-3144
    ARTHUR J. BRYANT,
    Petitioner-Appellant,
    v.
    RICHARD BROWN,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Southern District of Indiana, Terre Haute Division.
    No. 2:13-cv-00218-WTL-WGH — William T. Lawrence, Judge.
    ____________________
    ARGUED JANUARY 4, 2017 — DECIDED OCTOBER 23, 2017
    ____________________
    Before POSNER, * EASTERBROOK, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Arthur John Bryant, an Indiana pris-
    oner, was convicted of murdering his stepmother. He was
    17 years old at the time of the killing. Under Indiana law
    juveniles in police custody have a statutory right to “mean-
    * Circuit Judge Posner retired on September 2, 2017, and did not partici-
    pate in the decision of this case, which is being resolved by a quorum of
    the panel under 
    28 U.S.C. § 46
    (d).
    2                                                 No. 15-3144
    ingful consultation” with a parent before waiving their
    constitutional rights. See IND. CODE § 31-32-5-1. Bryant met
    with his mother and made an incriminating statement to her.
    Two detectives surreptitiously recorded their conversation,
    and the incriminating statement was introduced at Bryant’s
    trial through the testimony of both eavesdropping officers.
    Bryant’s counsel objected to the first detective’s testimony
    but the objection was overruled. On direct appeal the Indi-
    ana Court of Appeals held that the statement should not
    have been admitted, but because Bryant’s counsel did not
    object to the second detective’s testimony about the same
    statement, the error was both unpreserved and effectively
    harmless.
    On state postconviction review, Bryant raised a claim of
    ineffective assistance of counsel under Strickland v.
    Washington, 
    466 U.S. 668
     (1984). He identified five errors,
    including his counsel’s failure to preserve the surreptitious-
    recording issue and several other alleged missteps at trial. In
    a separate claim, he raised a Brady violation stemming from
    a falsehood in a police report. Finally, in a catch-all argu-
    ment, he claimed a right to relief based on cumulative error.
    The trial judge was not persuaded by these arguments.
    Neither was the Indiana Court of Appeals. Bryant then
    sought federal habeas relief under 
    28 U.S.C. § 2254
    , reiterat-
    ing the same claims. The district court denied relief, and we
    affirm the judgment. The state appellate court reasonably
    applied Strickland and Brady.
    I. Background
    On January 4, 2000, Carol Bryant went missing. A few
    days later the police discovered her body in the trunk of her
    No. 15-3144                                                 3
    abandoned car. At the time of her death, Carol was living
    with her husband, Lee Bryant, at their home in Harrison
    County in southern Indiana. Lee’s 17-year-old son, Arthur
    John Bryant, also lived with the couple; to avoid confusion
    we’ll refer to him as “Bryant” and use first names for other
    family members.
    Bryant had previously lived with his mother, Kristi, but
    she kicked him out because she could no longer control his
    behavior. Among other things, he stole her truck, threatened
    to kill her, chased her around the house with a baseball bat,
    and choked her.
    On the day of Carol’s disappearance, Lee came home
    midday to have lunch with his wife and son, then went back
    to work. When he returned home that evening, both Carol
    and Bryant were gone. Lee found a note from Bryant saying
    he was spending the night at a friend’s house. Lee called
    Carol’s family and friends in search of her, but no one knew
    where she was. When morning came without word from
    her, Lee reported her missing.
    Meanwhile, Bryant was driving around in Carol’s car,
    showing it off to friends. He had stolen her jewelry, some of
    which he sold to a pawnshop; the rest he gave away. After
    several days he abandoned the stolen car on the side of a
    rural road. When police recovered and searched it, they
    found Carol’s body in the trunk wrapped in a comforter. She
    had been strangled. Police also found a pair of Bryant’s jeans
    in the trunk. The jeans were stained with bodily fluids. DNA
    analysis later confirmed that the bodily fluids were Carol’s.
    Detectives soon learned that Bryant had an angry rela-
    tionship with his stepmother. They discovered some rap
    4                                                 No. 15-3144
    lyrics he had written describing Carol in profane terms and
    discussing a plan to kill a woman and leave her body in the
    trunk of a car.
    On January 8 sheriff’s deputies located Bryant in a near-
    by town and arrested him for Carol’s murder. When they
    arrived at the Harrison County Sheriff’s Office, Bryant asked
    for a lawyer. In the meantime, he was allowed to meet with
    his mother in accordance with an Indiana statute that gives
    juveniles in custody the right to consult with a parent before
    waiving their constitutional rights. See IND. CODE § 31-32-5-1.
    Sheriff’s Detectives Richard Bauman and William Whelan
    secretly eavesdropped on the conversation using a hidden
    recording device. They overheard Bryant tell his mother: “I
    told dad I had a problem and if he didn’t take care of it, I
    would, and I did.”
    The investigation continued after Bryant’s arrest. Detec-
    tive Bauman interviewed Carol’s friend Tracy Beemer (neé
    Borden), who told him that Carol had confided to her that
    Lee was abusive and had threatened to kill her. She also told
    the detective that she and Carol had contacted domestic-
    violence shelters a few days before Carol’s death. Detective
    Bauman’s report wrongly stated that Beemer told him that
    Carol had identified Bryant, not Lee, as her abuser. The
    prosecution disclosed this report to the defense before trial.
    Bryant’s defense team—he had two attorneys—did not
    follow up by interviewing Beemer.
    Bryant stood trial for murder, theft, and obstruction of
    justice. Some factual detail about the trial is necessary to
    understand the issues raised in this appeal. The prosecution
    called both Detective Bauman and Detective Whelan as
    witnesses. The detectives testified about Bryant’s incriminat-
    No. 15-3144                                                  5
    ing statement to his mother at the Sheriff’s Office. Bryant’s
    counsel objected to this line of questioning during Detective
    Bauman’s testimony, raising the statutory violation. The
    objection was overruled. Bryant’s counsel did not reiterate
    the objection when Detective Whelan testified on the same
    subject.
    As relevant here, the prosecution also called Alice
    Alcorn, a friend of Carol’s. She testified that Bryant told her
    he would kill Carol before he turned 18. This aspect of her
    testimony came as a surprise to everyone; Alcorn had not
    previously disclosed this information to the prosecution
    team.
    Bryant’s defense at trial was to point the finger at Lee as
    the real killer. Bryant took the stand in his own defense and
    told the jury that on the day of Carol’s disappearance, he left
    the house in the middle of lunch because she and Lee were
    fighting. He testified that he returned a short while later to
    find Lee standing over Carol’s dead body. Lee told him to
    “take care of this,” and Bryant left the home in Carol’s car
    with her body in the trunk. He admitted that he drove
    around for several days with her body in the trunk before
    abandoning the car on the side of a road. He also admitted
    that he stole her jewelry, pawned some of it, and gave away
    the rest. Finally, he acknowledged that his relationship with
    his stepmother was strained and at times angry.
    Before trial the judge had granted a defense motion to
    exclude evidence of Bryant’s threats and violence against his
    mother, Kristi. As Bryant’s testimony unfolded, the jury
    submitted a question asking why he went to live with his
    father. Bryant’s counsel objected based on the court’s pretrial
    ruling, and the judge sustained the objection.
    6                                                No. 15-3144
    The next day, however, during the direct examination of
    Bryant’s parole officer, Stephanie Ringer, defense counsel
    returned to this subject, asking Ringer why Bryant went to
    live with his father. She replied that his mother had kicked
    him out of her house because he stole her truck. Later when
    the defense called Kristi as a witness, the prosecutor cross-
    examined her about the other reasons why she kicked her
    son out—namely, that he had threatened her, chased her
    with a baseball bat, and choked her. Over Bryant’s objection
    the judge allowed this line of questioning, ruling that the
    defense had opened the door by asking Ringer why Bryant
    went to live with his father.
    Ringer also testified about Bryant’s prior convictions.
    During Bryant’s testimony, he had been impeached with his
    prior convictions; the defense team put the parole officer on
    the stand to supply some context. The jurors submitted a
    question asking what specific crimes he was on parole for.
    The question was allowed without objection. Ringer re-
    sponded that he was on parole for theft, burglary, and a
    weapons offense.
    The jury found Bryant guilty as charged. On direct ap-
    peal he challenged the admission of Kristi’s testimony about
    his threats and violence toward her. He also challenged the
    admission of his incriminating statement to his mother
    based on the detectives’ violation of his statutory right to
    meaningful consultation with a parent.
    The Indiana Court of Appeals rejected these arguments
    and affirmed. The court agreed with the trial judge that the
    defense had opened the door to Kristi’s testimony about her
    son’s violent behavior by asking Ringer why Bryant went to
    live with his father. The court reasoned that excluding this
    No. 15-3144                                                   7
    line of cross-examination would have left the jury with the
    false impression that Kristi kicked her son out solely because
    he had stolen her truck. The court also held that the covert
    recording of the conversation between Bryant and his moth-
    er violated his statutory right to parental consultation, so the
    judge should have sustained the objection to the admission
    of Detective Bauman’s testimony about Bryant’s incriminat-
    ing statement. But because the defense did not object to
    Detective Whelan’s identical testimony, the court held that
    the issue was waived, or at least not a reversible error. In
    other words, because Detective Bauman’s erroneously
    admitted testimony essentially duplicated Detective
    Whelan’s unchallenged testimony on the same subject, the
    error was both unpreserved and harmless.
    Bryant then sought state postconviction relief based on
    ineffective assistance of counsel. He raised five alleged
    errors by his trial attorneys: (1) the failure to object to
    Detective Whelan’s testimony regarding his incriminating
    statement to his mother; (2) the failure to impeach Alcorn
    after she unexpectedly testified about his threat to kill Carol;
    (3) the failure to object to Ringer’s testimony regarding his
    prior convictions; (4) opening the door to evidence about his
    violence and threats against his mother; and (5) the failure to
    interview Beemer, whose testimony regarding Lee’s abuse of
    Carol might have supported the defense that Lee was the
    killer. Bryant also asserted that Detective Bauman’s
    misleading police report about Beemer’s statement violated
    Brady v. Maryland, 
    373 U.S. 83
     (1963). Finally, he argued that
    the combined effect of these errors warranted relief under
    the cumulative-error doctrine.
    8                                                  No. 15-3144
    The trial judge rejected each of these claims, and the
    Indiana Court of Appeals affirmed. Bryant’s trial attorneys
    testified at the postconviction hearing that the challenged
    decisions could not be characterized as strategic trial judg-
    ments. The appellate court discounted this testimony as the
    product of hindsight bias and reasoned instead that the
    decisions in question all dealt with matters of trial strategy.
    The court concluded that the performance of Bryant’s de-
    fense team was not objectively unreasonable when evaluated
    as of the time the decisions were made.
    For two of the five alleged errors, the appellate court also
    addressed the question of prejudice under Strickland. The
    court noted that the failure to object to Detective Whelan’s
    testimony about Bryant’s incriminating statement was not
    prejudicial in light of the abundant evidence of his guilt. The
    court also held that the failure to interview Beemer was not
    prejudicial because her testimony about Carol’s statements
    would have been inadmissible hearsay.
    The court rejected Bryant’s Brady claim as well, noting
    first that the prosecution had disclosed Detective Bauman’s
    report about his interview with Beemer, so the defense team
    was aware that she was a potential witness and could have
    discovered her true account of Lee’s abuse. The court also
    held that because Beemer’s testimony about Carol’s state-
    ments to her would have been excluded as hearsay, the
    misleading police report was ultimately immaterial. And
    because there was no error at all, much less multiple errors,
    the court rejected Bryant’s claim of cumulative error.
    Bryant then moved for federal habeas relief under § 2254,
    asserting the same Strickland and Brady claims. The district
    judge denied the motion, concluding that the state appellate
    No. 15-3144                                                  9
    court reasonably applied the Strickland standard to each of
    Bryant’s claims. The judge faulted the state court’s conclu-
    sion that the failure to interview Beemer was not deficient
    performance; that ruling, the judge thought, was unreasona-
    ble. But because the state court reasonably concluded that
    this error was not prejudicial, the judge found no basis for
    relief on any aspect of Bryant’s Strickland claim. The judge
    also concluded that the state appellate court reasonably
    applied Brady.
    II. Discussion
    The state courts adjudicated Bryant’s Strickland and Brady
    claims on the merits, so our review is governed by
    § 2254(d)’s deferential standard. A federal habeas court may
    not grant relief unless the state court’s decision “was contra-
    ry to, or involved an unreasonable application of, clearly
    established Federal law” or “was based on an unreasonable
    determination of the facts in light of the evidence present-
    ed.” 
    28 U.S.C. § 2254
    (d). This standard requires the habeas
    petitioner to show that the state court’s ruling “was so
    lacking in justification that there was an error well under-
    stood and comprehended in existing law beyond any possi-
    bility for fairminded disagreement.” Ward v. Neal, 
    835 F.3d 698
    , 703 (7th Cir. 2016) (quoting Harrington v. Richter, 
    562 U.S. 86
    , 103 (2011)).
    A. Ineffective Assistance of Counsel
    The familiar Strickland standard for Sixth Amendment
    claims of ineffective assistance of counsel considers whether
    counsel’s performance was deficient and, if so, whether the
    deficient performance prejudiced the petitioner. Strickland v.
    Washington, 
    466 U.S. 668
    , 687–88 (1984). The first step in this
    10                                                  No. 15-3144
    framework asks “whether, in light of all the circumstances,
    the identified acts or omissions were outside the wide range
    of professionally competent assistance.” 
    Id. at 690
    . The
    prejudice inquiry asks whether there is “a reasonable proba-
    bility that, but for counsel’s unprofessional errors, the result
    of the proceeding would have been different.” 
    Id. at 694
    .
    Because “[t]here are countless ways to provide effective
    assistance,” Strickland established a “strong presumption
    that counsel’s representation falls within a wide range of
    reasonable representation.” Hinesley v. Knight, 
    837 F.3d 721
    ,
    732 (7th Cir. 2016) (quoting Strickland, 
    466 U.S. at
    689–90).
    The deferential nature of the Strickland standard, combined
    with the deference owed state-court decisions under
    § 2254(d), means that our review is “doubly deferential.” Id.
    (quoting Knowles v. Mirzayance, 
    556 U.S. 111
    , 123 (2009)).
    1. Failure to Preserve the Surreptitious-Recording Issue
    The state appellate court held that counsel’s failure to ob-
    ject to Detective Whelan’s testimony about Bryant’s incrimi-
    nating statement to his mother did not fall outside the range
    of competent representation. The court reasoned that the
    decision to make or withhold an objection is ordinarily a
    matter of trial strategy and often depends on factors unrelat-
    ed to the merits—to avoid irritating the jury, for example, or
    to refrain from highlighting unfavorable evidence or creat-
    ing the impression that the defendant has something to hide.
    The court also held that even if the failure to object fell below
    the constitutional standard, it was not prejudicial given the
    overwhelming evidence of Bryant’s guilt.
    That was not an unreasonable way to resolve this aspect
    of Bryant’s Strickland claim. In hindsight the lack of an
    No. 15-3144                                                   11
    objection seems significant; after all, the appellate court said
    it was error to admit Bryant’s incriminating statement based
    on the detectives’ violation of his statutory right to parental
    consultation. But the court also found no reasonable proba-
    bility of a different outcome, both because the error was
    ultimately harmless and the evidence of Bryant’s guilt was
    plentiful. The court’s no-prejudice ruling is well within the
    bounds of § 2254(d) reasonableness.
    2. Failure to Impeach Alcorn
    The state appellate court also reasonably concluded that
    the decision to forgo impeachment of Alice Alcorn was a
    matter of trial strategy. A “decision not to impeach a particu-
    lar witness is normally considered a strategic choice within
    the discretion of counsel.” Jones v. Butler, 
    778 F.3d 575
    , 584
    (7th Cir. 2015). That is especially true here because it is far
    from clear that any impeachment would have been success-
    ful. Alcorn’s trial testimony about Bryant’s threat to kill Carol
    was a surprise to everyone. Her reasons for not reporting
    this to the prosecution team before trial were unknown. For
    all anyone knew, she may have had a good reason for not
    revealing this information sooner. And any impeachment
    attempt would have drawn more attention to this damaging
    testimony. Instead Bryant’s counsel limited his cross-
    examination to Alcorn’s knowledge of Lee’s abuse of Carol—
    the foundation of Bryant’s primary defense theory. The state
    court reasonably characterized that approach as strategic
    and within the norms of professional competence.
    12                                                No. 15-3144
    3. Failure to Object to Ringer’s Testimony About
    Bryant’s Prior Convictions
    Bryant’s counsel did not object to the jury’s inquiry dur-
    ing Ringer’s testimony about the specific crimes for which
    Bryant was on parole. Once again the state court held that
    this decision was a matter of trial strategy and not outside
    the range of competent representation. The court noted that
    it was important to avoid the appearance that Bryant had
    something to hide and to build the jury’s trust and recep-
    tiveness to Bryant’s version of events. These strategic goals
    are especially strong in the face of a question posed by the
    jury itself. It was not unreasonable to conclude that counsel’s
    choice to withhold objection was within the range of profes-
    sional competence.
    4. Opening the Door to Kristi’s Testimony About
    Bryant’s Violent Behavior and Threats
    Bryant’s defense team obtained a pretrial order excluding
    evidence of his violent behavior and threats against his
    mother. But this evidence came in anyway when the trial
    judge ruled that Bryant’s counsel had opened the door to it
    during Ringer’s direct examination. At the postconviction
    hearing, the attorney testified that she did not think her
    examination of Ringer opened the door. Evidence of Bryant’s
    criminal history and fraught relationships with his family
    was already before the jury through his own testimony;
    putting his parole agent on the stand was intended to pro-
    vide some explanatory context. Counsel explained that at the
    time of trial, she did not think Ringer’s answer to the ques-
    tion about why Bryant was kicked out of his mother’s
    home—he had stolen her truck—would risk admission of his
    violent altercations with his mother.
    No. 15-3144                                                  13
    Again, in hindsight this line of questioning was a mis-
    take. But the state appellate court found it to be a reasonable
    strategic choice—not without risk certainly, but not outside
    the bounds of professional competence either. On § 2254(d)
    review, we cannot disturb a state-court judgment unless the
    ruling was so far afield that no fair-minded jurist could find
    it reasonable. Richter, 
    562 U.S. at 103
    . We can’t say that about
    this ruling. A fair-minded judge could conclude that Bryant’s
    counsel reasonably thought that she could contain the scope
    of this line of questioning—in other words, that it was
    possible to put before the jury a partial explanation for why
    Bryant was kicked out of his mother’s house without risking
    admission of evidence of his more violent behaviors. Errors
    resulting from strategic miscalculations may fall within the
    wide range of competent representation. It was not unrea-
    sonable for the state appellate court to characterize counsel’s
    decision in that way.
    5. Failure to Interview Beemer
    Finally, the state appellate court concluded that the deci-
    sion not to interview Tracy Beemer was not constitutionally
    deficient. A “heavy measure of deference” is owed to an
    attorney’s “particular decision not to investigate” certain
    witnesses. Strickland, 
    466 U.S. at 691
    . The state court gave the
    defense team the benefit of the doubt here. The court also
    found a lack of prejudice; even if Bryant’s counsel had
    interviewed Beemer, her testimony about Carol’s statements
    of spousal abuse would have been inadmissible hearsay. We
    see nothing unreasonable in this application of Strickland’s
    prejudice standard.
    Before we move on, we pause to address a point Bryant
    raises about the testimony of his trial attorneys at the post-
    14                                                No. 15-3144
    conviction hearing. He makes much of the fact that both
    attorneys declined to characterize any of the challenged
    decisions as matters of trial strategy. But they also testified
    that they were concerned about over-objecting and wanted
    to avoid creating the impression that Bryant had something
    to hide. These are aspects of trial strategy.
    More fundamentally, the Supreme Court has warned of
    the effects of hindsight bias in evaluating Strickland claims:
    “After an adverse verdict at trial even the most experienced
    counsel may find it difficult to resist asking whether a
    different strategy might have been better, and, in the course
    of that reflection, to magnify their own responsibility for an
    unfavorable outcome.” Richter, 
    562 U.S. at 109
    . But Strickland
    “calls for an inquiry into the objective reasonableness of
    counsel’s performance, not counsel’s subjective state of
    mind.” 
    Id.
     That Bryant’s attorneys acknowledged making
    mistakes “merely [highlights] that the defense strategy did
    not work out as well as counsel had hoped, not that counsel
    was incompetent.” 
    Id.
    B. Brady Claim
    The Brady rule holds that “suppression by the prosecu-
    tion of evidence favorable to an accused upon request
    violates due process where the evidence is material either to
    guilt or to punishment.” 
    373 U.S. at 87
    . “Suppression” occurs
    when the prosecution “fail[s] to disclose evidence not oth-
    erwise available to a reasonably diligent defendant.” Jardine
    v. Dittmann, 
    658 F.3d 772
    , 776 (7th Cir. 2011). And evidence is
    deemed “material” only when “a reasonable probability
    [exists] that, had the evidence been disclosed to the defense,
    the result of the proceeding would have been different.”
    United States v. Bagley, 
    473 U.S. 667
    , 682 (1985).
    No. 15-3144                                               15
    Bryant’s Brady claim centers on Detective Bauman’s police
    report about his interview with Tracy Beemer. The report
    stated that Beemer told him of Carol’s complaints about
    abuse by Bryant, when what she really said was that Carol
    had confided in her about abuse by Lee. The state appellate
    court held that Beemer’s actual statements were not sup-
    pressed in violation of Brady because they could have been
    discovered by trial counsel through reasonable diligence.
    The court also held that even if they were suppressed, the
    statements were not material because Beemer’s testimony
    about what Carol told her was inadmissible hearsay.
    Bryant characterizes the first holding as an unreasonable
    application of Brady. Even if we agreed, the court reasonably
    rejected the claim on materiality grounds, so relief under
    § 2254(d) is unwarranted. Bryant argues at length that
    Beemer’s testimony about what Carol told her would have
    been admissible under Indiana’s state-of-mind exception. See
    IND. R. EVID. 803(3). But that’s a quarrel about the state
    court’s ruling on a matter of state law and not a basis for
    § 2254 habeas relief. Harper v. Brown, 
    865 F.3d 857
    , 861 (7th
    Cir. 2017).
    Without Carol’s statements of spousal abuse, Beemer
    would have made a weak witness for the defense. It is not
    unreasonable to conclude that her residual testimony about
    the phone calls she made to domestic-violence shelters
    would not have had much impact on this trial without its
    underlying foundation. Considering the mountain of evi-
    dence pointing to Bryant’s guilt, the state appellate court’s
    materiality ruling was well within the bounds of reason.
    16                                                No. 15-3144
    C. Cumulative Error
    After resolving each of Bryant’s individual claims of error
    against him, the state court summarily rejected his argument
    about cumulative error. We do likewise.
    AFFIRMED.
    

Document Info

Docket Number: 15-3144

Judges: Posner, Easterbrook, Sykes

Filed Date: 10/23/2017

Precedential Status: Precedential

Modified Date: 11/5/2024