1

A petition for habeas corpus relief was filed in October of

1990 to address substantial claims of error under the Fifth,

Sixth, Eighth and Fourteenth Amendments--claims demonstrating

that Mr. Bryan was deprived of effective assistance of counsel on

direct appeal and that the proceedings resulting in his capital

conviction and death sentence violated fundamental constitutional

requirements. In November of 1992, a memorandum of law was filed

citing new case law in support of the petition for habeas corpus

relief. This Court denied Mr. Bryan relief on his state habeas

corpus claims. Bryan v. Duggar, 641 So.2d 61 (Fla. 1994).

Mr. Bryan's current death warrant was signed by Governor

Bush on September 23, 1999, and execution has been scheduled for

7:00 a.m., October 27, 1999. Mr. Bryan's current counsel has

only now discovered information which establishes that Mr. Bryan

was denied effective assistance of trial counsel, that he was

denied effective assistance of appellate counsel, and that this

Court's previous opinions affirming his conviction and sentence

on direct appeal, as well as affirming the denial of his

postconviction and state habeas corpus claims, are no longer

valid in light of this new information.

For the past ten years, Anthony Braden Bryan's lawyers

2

have diligently sought to understand why a brain-impaired,

mentally ill man was sentenced to death; why, despite a plethora

of evidence that he was incapable of testifying at trial, his

attorney put him on the stand to testify; and, why the trial jury

never heard the actual mitigation that existed in this case.

Those same lawyers have questioned how a competent attorney could

file a three-issue Initial Brief in Mr. Bryan's case, a case

fraught with prosecutorial misconduct and resting upon an

unintelligible sentencing order. For the first time, Mr. Bryan's

attorneys now have the answer to these questions.

Trial attorney Ted Alan Stokes, in a gesture as pure as the

truth of his admissions, has executed an affidavit, dated October

24, 1999--just three days in advance of Mr. Bryan's scheduled

execution--which answers so many questions posed over the years:

he was a practicing alcoholic at the time of his representation

of Anthony Braden Bryan. Mr. Stokes was under the debilitating

effects of alcohol at the time he counselled Mr. Bryan to take

the stand in his own defense. Mr. Stokes was a daily drinker

during all times when he represented Mr. Bryan--at both trials,

on direct appeal, and when he prepared the petition for writ of

certiorari to the United States Supreme Court.

Between his appointment in 1983 and his eventual discharge

3

from representation in 1989, Mr. Stokes suffered from what is

recognized as a severe and debilitating disease. The Florida

Supreme Court has recognized that "some Florida attorneys have

alcohol-related problems," The Florida Bar In Re: Amendment to

the Integration Rule, 490 So.2d 937 (Fla. 1986), and it is well-known

that high stress professions such as the practice of law

lend themselves to a high incidence of alcohol abuse and

addiction. Our DUI laws recognize that even moderate amounts of

alcohol impair cognition and motor functions.

Mr. Bryan was entitled to effective legal representation

during his capital trial and direct appeal. Under no

construction of prevailing case law can an attorney suffering

from an active, debilitating disease provide such effective

representation. The following excerpt from the seminal case of

Strickland v. Washington, 466 U.S. 668 (1984), is relevant

herein:

Thus, a fair trial is one in which evidence

subject to an adversarial testing is

presented to an impartial tribunal for

resolution of issues defined in advance of

the proceeding. The right to counsel plays a

crucial role in the adversarial system

embodied in the sixth Amendment, since access

to counsel's skill and knowledge is necessary

to accord defendants the "ample opportunity

to meet the case of the prosecution" to which

they are entitled. [cite omitted]

4

466 U.S. at 685 (emphasis supplied).

Counsel for Mr. Bryan have claimed that Mr. Stokes failed to

obtain, listen to, seek to suppress and/or utilize with mental

health experts and in cross-examination of Sharon Cooper an

audiotape of an illegally recorded conversation between Cooper

and Mr. Bryan. That audiotape became available to postconviction

counsel on October 13, 1999, and the true prejudice is now

subject to evaluation. Mr. Stokes has admitted since the time of

trial that he informed his client that no such audiotape existed

and he argued the State's use of the audiotape was a discovery

violation at trial. However, Mr. Stokes could not rebut the

State's insistence that the audiotape had been made available to

him prior to trial, and that he simply neglected to either listen

to or obtain a defense copy of the audiotape. This unusual and

peculiar circumstance now makes perfect sense. Mr. Stokes'

alcoholism caused the oversight and, as he now reveals for the

first time, he was under the influence of alcohol at the time he

advised Mr. Bryan that no such audiotape existed. This is not a

case where the issues were defined in advance and a true

adversarial testing took place. Mr. Stokes did not know or

remember in advance of trial that the State possessed an

illegally obtained audiotape which would likely be utilized to

5

impeach any testimony by Mr. Bryan during trial.

Further, this revelation by Mr. Stokes explains why he could

not get witnesses to court during the trial, did not have

meaningful discussions with mental health experts, did not even

know one mental health expert was in the courthouse during the

penalty phase, did not thoroughly and competently explore his

client's mental state with the only eyewitness to the homicide

other than his mentally ill, brain-damaged client (Sharon

Cooper), did not discover a map indicating a serious conflict in

the State's evidence about the circumstances and timing of the

discovery of George Wilson's body, and advised his client to take

the stand and testify despite seven inconsistent mental health

reports and warnings from several mental health experts that Tony

Bryan could not even disclose accurate and relevant information

to his attorney, let alone testify in front of a jury and

withstand cross-examination. In fact, this recent revelation by

Mr. Stokes explains why Tony Bryan said "I don't know" or "I

don't remember" to so many prosecution cross-examination

questions: Mr. Stokes told him to do so. He told him this while

under the influence of alcohol and there was no discussion of

possible cross-examination questions.

Mr. Stokes' disease is analogous to a conflict of interest

6

precluding him from providing effective representation to Tony

Bryan. See Cuyler v. Sullivan, 446 U.S. 335 (1980). An attorney

cannot zealously and effectively represent a capital defendant

while under the influence of a powerful central nervous system

depressant, or while recuperating from the past night's

indulgence, or while being distracted by the thought of obtaining

a drink as soon as possible. The medical science is irrefutable

on alcoholism: one may not serve alcohol and any other master at

the same time. A conflict of interest resulted in Mr. Bryan's

case. Where a conflict of interest exists, prejudice is presumed

to follow.

Trial counsel are required to "consult with the defendant on

important decisions and keep the defendant informed of important

developments in the course of the prosecution." Strickland, 466

U.S. at 688. The most important decision in Mr. Bryan's guilt-innocence

trial was whether or not Mr. Bryan would testify. Mr.

Stokes helped Mr. Bryan decide that critical issue while

impaired. The existence and contents of a recorded conversation

between Cooper and Bryan, which the state maintained involved

discussions of a concocted alibi, was clearly an "important

development" in the prosecution. According to his statements

both at trial and on appeal, Mr. Stokes never knew it existed

7

until it was used against his client by the state. One should

note a similar analysis applies to the map indicating the body

was found two days before Sharon Cooper purportedly led police to

it. This was another "important development" unknown to Mr.

Stokes.

An attorney has expanded duties when representing a client

whose condition prevents him from exercising proper judgment.

Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986);

Blanco v. Singletary, 943 F.2d 1477, 1502 (11th Cir. 1991). The

record in this case is replete with documentation that Mr. Bryan

suffered from Major Depressive Syndrome, Organic Personality

Syndrome, possibly suffered from Ganser's Syndrome, has

borderline intelligence (IQ=77), suffered from extreme stress,

and had additional memory problems related to alcohol and

narcotic abuse. Thus, Mr. Bryan was suffering from conditions

which prevented him from exercising proper judgment at the time

of trial. Now it is discovered that his attorney and advocate--

the only person standing between Mr. Bryan and the extensive

resources of the State and a date with the electric chair--also

suffered from a disease which not only precluded him from

assuming his expanded duties to Mr. Bryan under the Constitution,

but rendered him unable to exercise proper judgment himself.

8

These two impaired individuals decided Anthony Bryan should

testify during his capital trial and courts have relied on that

testimony in denying relief throughout this case.

Mr. Stokes has now reviewed Mr. Bryan's case from the

perspective of long-standing sobriety. He has considered the new

information alleged in Mr. Bryan's October 15 & 18, 1999, motions

for postconviction relief. He has reviewed Dr. Larson's

affidavit. He has considered what Sharon Cooper has revealed.

He has reviewed his previous evidentiary hearing testimony. In

light of all of this and his disclosure of his alcoholism at the

time of representing Mr. Bryan, Ted Alan Stokes has sworn that

the information contained in his October 24, 1999, affidavit "has

never been disclosed to any attorney representing Mr. Bryan in

postconviction proceedings" prior to a telephone call to one of

Mr. Bryan's attorneys on October 21, 1999. He was "an active

alcoholic, drinking daily" while representing Mr. Bryan. It was

not until "several years" after he ceased representing Mr. Bryan

that he "came to understand that [his] alcohol dependence was

having a negative impact in fulfilling [his] professional

responsibilities". He was treated in residential alcohol

treatment facilities twice: in 1990 and 1991. The 1990 treatment

was not successful; the 1991 treatment was, and he has been sober

9

since that time.

Mr. Stokes was "anxious and nervous" about his first capital

trial (Mr. Bryan's) and "had a number of drinks" before he went

to counsel Mr. Bryan about testifying. He misinformed Mr. Bryan

about the nonexistence of an audiotape and decided to call Tony

Bryan as a witness. He feels that "decision was influenced by

[his] lack of experience and possibly by [his] being under the

influence of alcohol at the time of the jail conference". He

also failed to discuss cross-examination with Mr. Bryan that

evening, telling him to just say he didn't remember.

Mr. Stokes confirms he never obtained a transcript of the

audiotape, he never got a copy of the audiotape, and he never

listened to the audiotape before trial. He was bushwhacked by

the audiotape the next day and his client was destroyed on the

stand by a skillful prosecutor who knew better than to play the

entire tape for the jury. Had he had the audiotape, he "would"

have sought to suppress it; he "may" have used it with mental

health experts.

He has reviewed Dr. Larson's recent affidavit and swears:

Based upon its contents, I am convinced that

I should have pursued what Sharon Cooper and

others knew about Tony Bryan's state of mind

at the time of the homicide. I have always

been convinced that Tony Bryan was

incompetent when I first met him and most

10

likely at the time of the homicide. I now

conclude in my present state and knowing what

is now known, I would not have advised Mr.

Bryan to testify. I would have called Dr.

Larson as a penalty phase witness to attack

proposed aggravating factors and support my

argument regarding statutory mental health

mitigating factors.

Regarding the map concerning discovery of the body, Mr.

Stokes feels it "is strong impeachment evidence which the state

should have provided [him] or [he] should have discovered".

Regarding his performance on direct appeal, Mr. Stokes

now notes that he failed to argue prosecutorial misconduct due to

Mr. Patterson arguing nonstatutory aggravation and infecting the

trial with other blatantly improper arguments. His initial brief

contained but three issues. He added three more only after Mr.

Bryan complained. By arguing the appeal in such fashion, Mr.

Stokes assured that legitimate, reversible claims were barred in

future proceedings.

The Courts reviewing this claim must consider that Mr.

Stokes served both as trial and appellate counsel for Mr. Bryan.

Thus, his alcoholism and resulting deficient performance at trial

prejudiced his attempts to obtain relief on direct appeal. The

prejudice to Mr. Bryan is layered: deficient performance at

trial which resulted in a death sentence, being barred from

raising claims on appeal due to deficient trial performance,

11

deficient performance on appeal, which results in barring claims

in both postconviction and state habeas proceedings. The entire

proceedings since 1983 have been infected with error and neglect;

the Courts of this state can have no confidence in the outcome of

Mr. Bryan's trial, his appeal, or any subsequent proceedings

under these circumstances. Prejudice is pervasive and obvious.

There is a "reasonable probability that, but for counsel's errors

[resulting from his alcoholism], the result of the proceeding[s]

would have been different" Strickland, 466 U.S. at 694.

Mr. Stokes has said it best:

The information contained in this affidavit

dealing with alcoholism is difficult to

disclose. The whole basis of Alcoholics

Anonymous is anonymity and I have sought to

preserve that in my practice. I was not

asked about my drinking during the

evidentiary hearing and did not volunteer the

information. However, my longstanding

abstinence from alcohol, the emphasis on

honesty in my twelve step programs and my

conscience dictate that I come forward before

Tony Bryan is executed and tell the complete

truth regarding my representation of him.

Mr. Bryan's attorneys had no means to bring into the light

what has been intentionally kept in the darkness. The code of

silence or anonymity implicit in twelve step programs is both

necessary to recovery, and a huge barrier to discovery in the

present context. Mr. Stokes acknowledges he may have been asked

12

about his drinking in 1991, but his recall is "vague" and he

"either denied it or avoided the question" because he was "then

early in sobriety and not comfortable with discussing the

matter". This evidence has never been available and but for Mr.

Stokes' courage and phone call of October 21, 1999, it would have

never been discovered.

As stated in Strickland:

Because of the vital importance of counsel's

assistance, this Court has held that, with

certain exceptions, a person accused of a

federal or state crime has the right to have

counsel appointed if retained counsel cannot

be obtained. [citations omitted] That a

person who happens to be a lawyer is present

at trial alongside the accused, however, is

not enough to satisfy the constitutional

command. The Sixth Amendment recognizes the

right to the assistance of counsel because it

envisions counsel's playing a role that is

critical to the ability of the adversarial

system to produce just results. An accused

is entitled to be assisted by an attorney,

whether retained or appointed, who plays the

role necessary to ensure that the trial is

fair.

Strickland, 466 U.S. at 685 (emphasis supplied). Unfortunately,

due to disease Mr. Stokes was unable to play the role

contemplated by the Supreme Court. That disease infected Mr.

Bryan's capital proceedings and cannot be ignored without

rendering the adversary system a farce.

Because of this new information, this Court's previous

13

rulings must now be revisited in order to correct error in the

appeal process that denied Mr. Bryan fundamental constitutional

rights. See, Kennedy v. Wainwright, 483 So.2d 424, 426 (Fla.

1986). Given the disturbing nature of the new information,

pursuant to subsections 3(b)(7) and (9) of Article V of the

Florida Constitution and Rule 9.030(a)(3) of the Florida Rules of

Appellate Procedure, this Court should grant the requested stay

of execution, and grant the relief sought in this petition and/or

grant a new direct appeal in Mr. Bryan's case. Fundamental

fairness requires no less.

Ted Alan Stokes' original affidavit attesting to his

alcoholism and daily drinking during the time he represented Mr.

Bryan is attached hereto and incorporated by reference.

14

A writ of habeas corpus is an original proceeding in this

Court governed by Fla. R. App. P. 9.100. The Constitution of the

State of Florida guarantees that "[t]he writ of habeas corpus

shall be grantable of right, freely and without cost." Art. I, §

13, Fla. Const. Its constitutional guarantee imbues habeas

corpus with special status, which this Court has long recognized:

The writ of habeas corpus is a high

prerogative writ of ancient origin designed

to obtain immediate relief from unlawful

imprisonment without sufficient legal

reason. . . . The writ is venerated by all

free and liberty loving people and recognized

as a fundamental guaranty and protection of

their right of liberty.

Allison v. Baker, 11 So. 2d 578, 579 (1943). In fact, habeas

corpus is a centuries-old right, deserving of more protection

than even a constitutional right. A lower court has written:

The great writ has its origins in antiquity

and its parameters have been shaped by

suffering and deprivation. It is more than a

privilege with which free men are endowed by

constitutional mandate; it is a writ of

ancient right.

Jamason v. State, 447 So. 2d 892, 894 (Fla. 4th DCA 1983),

approved 455 So. 2d 380 (Fla. 1984), cert. denied, 469 U.S. 1100

(1985). Regarding the application of procedural rules to

petitions seeking the writ, this Court has explained:

15

[H]istorically, habeas corpus is a high

prerogative writ. It is as old as the common

law itself and is an integral part of our own

democratic process. The procedure for the

granting of this particular writ is not to be

consideration of other processes. If it

appears to a court of competent jurisdiction

that a man is being illegally restrained of

his liberty, it is the responsibility of the

court to brush aside formal technicalities

and issue such appropriate orders as will do

justice. In habeas corpus the niceties of

Anglin v. Mayo, 88 So. 2d 918, 919-20 (Fla. 1956) (emphasis

added). Recently, this Court has written:

The fundamental guarantees enumerated in

Florida's Declaration of Rights should be

available to all through simple and direct

means, without needless complication or

impediment, and should be fairly administered

in favor of justice and not bound by

technicality.

Haag v. State, 591 So. 2d 614, 616 (1992). The obvious

relationship between habeas corpus and the constitutional

guarantee of liberty explains why habeas corpus is the only writ

specifically guaranteed by the Declaration of Rights of the

Operation and Jurisdiction of the Florida Supreme Court, 18 Nova

16

L. Rev. 1151, 1258 (1994). As the history of habeas corpus makes

clear, the imposition of procedural technicalities on the filing

of petitions for habeas corpus would frustrate the writ's ancient

purpose and subvert its constitutional guarantee.

This Court also has the jurisdiction to re-open Mr. Bryan's

direct appeal, and, based on the constitutional errors which Mr.

Bryan has alleged, the Court should exercise this jurisdiction in

Mr. Bryan's case. In Parker v. State, 643 So. 2d 1032 (Fla.

1994), this Court explained that Mr. Parker's death sentence had

constitutional error in this Court's resolution of Mr. Parker's

direct appeal. Parker, 634 So. 2d at 1033. This Court detailed

that the Supreme Court had "order[ed] the State of Florida to

initiate appropriate proceedings for state courts to reconsider

Parker's death sentence." Id. In furtherance of the Supreme

Court's directive, the State sought to re-open Mr. Parker's

direct appeal, arguing that because the constitutional error went

"to this Court's original appellate review, it appears to the

state that the appropriate vehicle for compliance is the original

appeal itself." See Motion for Establishment of Briefing

Schedule on Remand, in Parker v. State, Case No. 63,700 (filed

17

October 16, 1991). This Court granted the State's motion, and in

its opinion granting Mr. Parker a life sentence, noted that it

had jurisdiction pursuant to Art. V, § 3(b)(1), Fla. Const, the

provision granting this Court's mandatory jurisdiction over

capital direct appeals. Parker, 643 So. 2d at 1033. See also

Hill v. State, 643 So. 2d 1071 (Fla. 1994) (reopening direct

appeal after constitutional error found in original appeal);

Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994) ("opening a

case" at request of the State to address constitutional error on

earlier appeal).

Whether this Court chooses to exercise its habeas

jurisdiction or its jurisdiction to reopen a direct appeal, it is

imperative that the Court address the substantial claims

presented in this petition. This petition is being filed in

order to address substantial claims of error under the Fifth,

Sixth, Eighth, and Fourteenth Amendments, claims demonstrating

that Anthony Bryan's death sentence violated fundamental

constitutional imperatives, and was neither fair, reliable, nor

individualized. The petition also presents questions that were

ruled on in Mr. Bryan's prior state habeas corpus decision but

that now must be revisited in order to correct error in the

appeal process that denied fundamental constitutional rights.

18

See Kennedy v. Wainwright, 483 So. 2d 424, 426 (Fla. 1986) ("It

is only in the case of error that prejudicially denies

fundamental constitutional rights that this Court will revisit a

matter previously settled by the affirmance of a conviction or

sentence").

Given the substance of what this petition involves, pursuant

to subsections 3(b)(7) and (9) of Article V of the Florida

Constitution and Rule 9.030(a)(3) of the Florida Rules of

Appellate Procedure, this Court should grant the requested stay

of execution, allow oral argument, consider the claims, and grant

the relief sought in this petition.

19

Mr. Bryan's convictions and death sentence originate from

Santa Rosa County, Florida, and are based upon a jury verdict of

guilt for the kidnapping, robbery, and murder of George Wilson.

The jury recommended death by the narrowest margin legally

permissible: 7-5. Mr. Bryan's judgments and sentence were

affirmed by the Florida Supreme Court. Bryan v. State, 533 So.2d

744 (Fla. 1988). The United States Supreme Court denied

certiorari. Bryan v. Florida, 490 U.S. 1028 (1989).

Under extreme circumstances brought on by numerous death

warrants being litigated at the same time, including Mr. Bryan's

first warrant, counsel for Mr. Bryan filed a Motion for

Postconviction Relief, as well as a Consolidated Petition for

Extrordinary Relief, for a Writ of Habeas Corpus, Request for

Stay of Execution, and if necessary, Application for Stay of

Execution Pending the Filing and Disposition of a Petition for

Writ of Certiari in the United States Supreme Court. The circuit

court denied Mr. Bryan relief in postconviction, and this Court

affirmed that denial, as well as denying him relief on his state

habeas corpus claims. Bryan v. Duggar, 641 So.2d 61 (Fla. 1994).

Mr. Bryan's federal Petition for Writ of Habeas Corpus was

denied without evidentiary hearing and affirmed on appeal. Bryan

20

v. Singletary, 140 F.3d 1354 (11th Cir. 1998). Petition for Writ

of Certiorari was denied by the United States Supreme Court.

Bryan v. Singletary, 119 S.Ct. 1068 (1999). Mr. Bryan's current

death warrant was signed by Governor Bush on September 23, 1999,

and execution has been scheduled for 7:00 a.m., October 27, 1999.

Thus, Mr. Bryan has been allowed but 34 days within which to

defend against the warrant. The new information on which this

consolidated petition is based has come into counsel's possession

less than a week before Mr. Bryan's scheduled execution.

21

Mr. Bryan's petition includes a request that the Court stay

his execution, presently scheduled for October 27, 1999, at 7:00

A.M. As will be shown, the issues presented in this petition are

substantial and warrant a stay. This Court has not hesitated to

stay executions to ensure judicious consideration of issues

presented by petitioners litigating during the pendency of a

death warrant. See, e.g., Provenzano v. State, September 23,

1999, Slip. Op. in Case No. 96,453 (staying execution and

remanding for evidentiary hearing on competency to be executed

claim); Breedlove v. Singletary, 595 So. 2d 8 (Fla. 1992);

Jackson v. Dugger, 547 So. 2d 1197 (Fla. 1989); Riley v.

Wainwright, 517 So. 2d 656 (Fla. 1989). Similarly, the Court has

been especially vigilant to guard the need for procedural

fairness in capital proceedings, and accordingly has not

hesitated to enter stays of execution in order to assure that

capital petitioners are treated fairly in the litigation of

claims for relief during the pendency of a death warrant. See,

e.g., Provenzano, supra; Scott v. State, Case Nos. 84,687 &

84,686 (Order dated November 17, 1994) (staying execution pending

disposition of claims of newly discovered evidence in successive

postconviction motion and habeas petition). Mr. Bryan is

22

entitled to the same treatment and to the fair consideration of

his meritorious claims.

23

Mr. Bryan hereby incorporates the factual assertions and law

presented in Claim II of Mr. Bryan's 1990 petition for habeas

corpus relief, and supplements the same with the following.

This issue was presented on direct appeal, but only

regarding the guilt phase of Mr. Bryan's trial. Bryan v. State,

533 So.2d 744 (Fla. 1988). Mr. Bryan's appellate counsel failed

to even address the state's improper arguments in the penalty

phase. The issue was raised again in Mr. Bryan's 1990 petition

for habeas corpus relief based on new developments in the law,

particularly regarding the standards involved in assessing the

Eighth Amendment implications of improper prosecutorial

arguments. This Court ruled that the issue was procedurally

barred because it was, or could have been, raised on appeal.

Bryan v. Duggar, 641 So.2d 61, 65 (Fla. 1994). Mr. Bryan now

asserts that, based on the new information regarding Mr. Bryan's

trial/appellate counsel outlined above, fundamental fairness

state made several arguments which violated Booth v. Maryland,

107 S.Ct. 2529 (1987). These improper arguments are detailed in

Claim V, infra.

24

requires that this Court now reconsider this issue and grant Mr.

Bryan relief, or grant him a new direct appeal in his case.

Several of the state's arguments at both the guilt and

penalty phases were clearly improper. Many of the arguments

included vindictive and personal attacks on Mr. Bryan. The

state's clear intent was to inflame the passions of the jury in

such a manner as to prevent a proper consideration of mitigating

circumstances. No curative instructions were given. The remarks

were of the type that this Court has found "so egregious,

inflammatory, and unfairly prejudicial that a mistrial was the

only proper remedy." Garron v. State, 528 So.2d 353, 358 (Fla.

1988). On several occasions, the state attempted to arouse the

passions and fears of the jury, engender prejudice against Mr.

Bryan, and inflame emotions. As a result of these improper

arguments, Mr. Bryan's convictions are neither fair nor reliable,

and his death sentence is neither fair, reliable, nor

individualized.

During closing argument of Mr. Bryan's guilt phase, the

arguments of this nature. In Ruiz v. State, 24 Fla. L. Weekly

S157 (Fla. 1999), the state improperly personalized herself in

the eyes of the jury by urging jurors to do their duty as her

father had during Dessert Storm and sentence Ruiz to death. As

this Court stated: "[T]he role of counsel in closing argument is

to assist the jury in analyzing [the] evidence, not to obscure

the jury's view with personal opinion, emotion, and nonrecord

evidence" (remainder of quote omitted). Unfortunately for Mr.

Bryan, this is exactly what occurred in his case.

25

commented on Mr. Bryan's Sixth Amendment rights to trial and to

confrontation (R. 746-7); the state interjected his own personal

the state improperly commented on the credibility of a defense

witness (R. 750); and, the state improperly engaged in personal

attacks on Mr. Bryan (R. 760).

The state's improper comments were even worse in his

rebuttal closing: the state improperly commented on Mr. Bryan's

failure to produce evidence (R. 797); the state improperly

commented on Mr. Bryan's failure to produce witnesses, and the

defense objection to this was overruled (R. 801); the state

improperly commented on Mr. Bryan's exercise of his right to

trial (R. 803); the state improperly concluded his argument by

urging the jury to convict Mr. Bryan "because this man is

dangerous" (R. 806); and, the state improperly made personal

attacks on Mr. Bryan which were irrelevant and simply meant to

26

inflame the jury (R. 800). The worst example of the state's

improper comments was his comment on Mr. Bryan's right to remain

silent, and the defense objection to this argument was also

overruled (R. 803).

During the penalty phase closing argument, the state again

engaged in improper personal attacks on Mr. Bryan (R. 955). The

state also improperly commented that the jury should be motivated

to recommend death "in an outraged and powerful way" based on Mr.

Bryan's supposed ability to "fool people", and the defense

objection to this argument was also overruled (R. 958).

All of these arguments violated Mr. Bryan's Eighth and

Fourteenth Amendment rights. See, e.g., Wilson v. Kemp, 777 F.2d

621 (11th Cir. 1985); Drake v. Kemp, 762 F.2d 1499 (11th Cir.

1985); Newlon v. Armontrout, 885 F.2d 1328 (8th Cir. 1989);

Coleman v. Brown, 802 F.2d 1227 (10th Cir. 1986); Cunningham v.

Zant, 928 F.2d 1006 (11th Cir. 1991). The arguments contaminated

the proceedings with irrelevant, inflammatory and prejudicial

appeals to the jury's sympathy for the victim, to the jury's

emotions, and to the jury's fears. Standing alone, the guilt

phase argument requires a new trial. However, combining the

guilt phase argument with the blatantly unconstitutional penalty

phase argument that followed it, Mr. Bryan is clearly entitled to

27

a resentencing.

The improprieties at issue here are particularly significant

because they occurred at a capital trial and sentencing

proceeding. The improper arguments "serve[d] no other purpose

than to inflame the jury and divert it from deciding the case on

the relevant evidence concerning the crime and the defendant."

Booth v. Maryland, 107 S.Ct. 2529, 2535 (1987). Since the

decision to impose the death penalty must "be, and appear to be,

based on reason rather than caprice or emotion," Gardener v.

Florida, 430 U.S. 349, 358 (1977), such efforts to fan the flames

are "inconsistent with the reasoned decision making" required in

a capital case. Booth, at 2536. See also, Penry v. Lynaugh, 109

S.Ct. 2934, 2951 (1989)(death sentence cannot be premised on "an

unguided emotional response").

Arguments presented by the state in Mr. Bryan's trial are

totally irrelevant to the defendant's "personal moral

culpability," Penry, and thus only serve to divert the capital

sentencer from making a decision based on reason and the

individual characteristics of the capital defendant. The remarks

in this case violated the principles discussed in Rhodes v.

State, 547 So.2d 1201 (Fla. 1989). See also Rosso v. State, 505

So.2d 611, 614 (Fla. 3rd DCA 1982) (defining a proper closing

28

argument as one which "review[s] the evidence" and draws

reasonable "inferences" from that evidence).

This Court has held that when improper conduct by a

prosecutor "permeates" a case, as it has here, relief is proper.

Nowitzke v. State, 572 So.2d 1346 (Fla. 1990). Other Florida

courts have held that "a prosecutor's concern 'in a criminal

prosecution is not that it shall win a case, but that justice

shall be done.' While a prosecutor 'may strike hard blows, he is

not at liberty to strike foul ones.'" Rosso, 505 So. 2d at 614.

This Court has called such improper prosecutorial commentary

"troublesome," Bertolotti v. State, 476 So. 2d 130, 132 (Fla.

1985), and when improper conduct by the prosecutor "permeates" a

case, as it did here, relief is proper. Nowitzke.

The state's inflammatory, emotional and improper comments

and argument to the jury rendered Mr. Bryan's conviction and

death sentence fundamentally unfair and unreliable in violation

of the Sixth, Eighth and Fourteenth amendments. The comments by

the state went beyond the bounds of proper argument and clearly

prejudiced Mr. Bryan's right to a fair trial and sentencing,

making his resulting convictions and death sentence unfair,

unreliable and nonindividualized.

As stated previously, this claim was presented on direct

29

appeal, but only regarding the guilt phase of Mr. Bryan's trial.

Bryan v. State, 533 So.2d 744 (Fla. 1988). Mr. Bryan's appellate

counsel failed to even address the state's improper arguments in

the penalty phase, barring later review by appellate courts. Mr.

Bryan's appellate counsel now admits that he failed in this

respect due to his alcoholism, rendering him unable to play the

role of the advocate who ensures a fair and just result for his

client, as contemplated by the United States Supreme Court in

Strickland. Mr. Bryan should be granted a stay of execution, and

granted relief on this claim and/or granted a new direct appeal.

30

Mr. Bryan hereby incorporates the factual assertions and law

presented in Claim V of Mr. Bryan's 1990 petition for habeas

corpus relief, and supplements the same with the following.

This issue was previously raised in Mr. Bryan's 1990

petition for habeas corpus relief. This Court ruled that the

issue was not contemporaneously objected to at trial, thus making

the issue barred for direct appeal purposes. Because of this, it

was barred from habeas corpus relief, and this Court ruled that

Mr. Bryan could not circumvent the bar by alleging ineffective

assistance of counsel. Bryan v. Duggar, 641 So.2d 61, 65 (Fla.

1994).

Mr. Bryan now asserts that, based on the new information

regarding Mr. Bryan's trial/appellate counsel outlined above,

fundamental fairness requires that this Court now reconsider this

issue and grant Mr. Bryan relief. In reviewing this claim, the

31

Court must consider the fact that Mr. Stokes served both as trial

and appellate counsel for Mr. Bryan, and his deficiencies at

trial prejudiced his attempts to obtain relief on direct appeal.

Mr. Bryan was sentenced to death in proceedings which

allowed for the unchecked exercise of passion, prejudice and

emotion. Here, as in South Carolina v. Gathers and Booth v.

Maryland, the state's efforts were intended to and did "serve no

other purpose than to inflame the jury and divert [them] from

deciding the case on the relevant evidence concerning the crime

and the defendant." Booth v. Maryland, 107 S.Ct. 2529, 2535

(1987). Since the decision to impose the death penalty must "be,

and appear to be, based on reason rather than caprice or

emotion," Gardener v. Florida, 430 U.S. 349, 358 (1977), such

efforts to fan the flames are "inconsistent with the reasoned

decision making" required in a capital case. Booth, at 2536. Mr.

Bryan's death sentence stands in stark violation of the Eighth

and Fourteenth amendments and must be vacated.

At Mr. Bryan's trial, the state presented arguments

regarding the victim's personal characteristics, worth and

suffering, urging the jury and court to sentence Mr. Bryan to

death based on precisely the same types of unconstitutional

victim impact arguments condemned in South Carolina v. Gathers,

32

109 S.Ct. 2207 (1989). As the record makes clear, these

arguments violated Mr. Bryan's Eighth and Fourteenth amendment

rights.

During closing argument in the guilt phase, the state

repeatedly made improper remarks regarding the character of the

victim, appealing to the emotions of the jury in highly

prejudicial ways. (R. 748, 749, 754-55, 765). These highly

improper comments could not have been forgotten by the jury as

the penalty phase began. Furthermore, during the penalty phase,

the state continued his impermissible emotional diatribe. (R.

954-55).

Mr. Bryan was sentenced to death on the basis of the

constitutionally impermissible "victim impact" and "worth of

victim" argument which the Supreme Court condemned in Booth and

Gathers. The Booth court concluded that "the presence or absence

of emotional distress of the victim's family, or the victim's

personal characteristics are not proper sentencing considerations

in a capital case." Booth, at 2535. In Gathers, the Supreme

Court applied the same considerations discussed in Booth to

prosecutorial argument. The Court held such arguments

unconstitutional because the victim's personal characteristics

are "purely fortuitous,...cannot provide any information relevant

33

to the defendant's moral culpability[,]...[and] cannot be said to

relate directly to the circumstances of the crime." Gathers, at

2211. See also Penry, 109 S.Ct. at 2951 (death sentence cannot

be premised on "an unguided emotional response," but must be

based solely on the personal culpability of the defendant).

Together, Booth, Gathers, and Penry establish that a capital

penalty phase must focus on the personal moral culpability of the

defendant and must provide a jury with a vehicle for making a

"reasoned moral response" to the defendant's background and

character and to the circumstances of the offense. Factors which

divert the sentencer from that task are unconstitutional because

they are "inconsistent with the reasoned decisionmaking" required

in capital cases. Booth, at 2536. Such impermissible factors

create the "risk that the death penalty will be imposed in spite

of factors which call for a less severe penalty." Penry, at 2952

(quoting Lockett, 438 U.S. at 605).

This is precisely what occurred in Mr. Bryan's case. The

state's arguments urged consideration of factors completely

unrelated to Mr. Bryan's moral culpability. A sentence of death

cannot stand when it results from prosecutorial comments which

may mislead the jury into imposing a sentence of death. Caldwell

v. Mississippi, 472 U.S. 320 (1985); Wilson v. Kemp, 777 F.2d

34

621, 626 (11th Cir. 1985), reh. denied, 784 F.2d 404 (11th Cir.

1986). A defendant must not be sentenced to die by a jury which

may have "failed to give its decision the independent and

unprejudiced consideration the law requires." Wilson, at 21

(quoting Drake v. Kemp, 762 F.2d 1449, 1460 (11th Cir. 1985); see

also Potts v. Zant, 734 F.2d 526 (11th Cir. 1984).

In Mr. Bryan's case, the state provided textbook examples of

improper argument. He urged the jury to consider matters that

were not appropriate for deciding whether Mr. Bryan should live

or die, and consideration of these factors rendered the

sentencing proceeding fundamentally unreliable.

This claim involves fundamental constitutional error which

goes to the heart of the fundamental fairness of Mr. Bryan's

death sentence. Furthermore, the claim was properly brought in

Mr. Bryan's previous petition for habeas corpus relief (pursuant

to this Court's habeas corpus authority) because it involved

substantial and prejudicially ineffective assistance of direct

appeal counsel. The failure of direct appeal counsel to present

this claim on direct appeal deprived Mr. Bryan of effective

assistance of counsel, and deprived him of the appellate reversal

he was entitled to. See Wilson v. Wainwright, at 1164-65.

As stated earlier, this claim was previously presented to

35

this Court, and this Court denied Mr. Bryan relief. Bryan v.

Duggar, 641 So.2d 61, 65 (Fla. 1994). Based on the new

information regarding Mr. Bryan's trial/appellate counsel

presented above, fundamental fairness requires that this Court

now reconsider this issue and grant Mr. Bryan relief.

36

Mr. Bryan hereby incorporates the factual assertions and law

presented in Claim XI of Mr. Bryan's 1990 petition for habeas

corpus relief. Mr. Bryan also incorporates into this claim the

factual assertions and law presented to the lower court in his

Emergency Motion to Vacate Judgement and Sentence, and the

supplement to that motion, as well as the assertions being

simultaneously presented to this Court in Mr. Bryan's initial

brief appealing the summary denial of his motion by the lower

court.

Trial counsel, by objecting at trial, preserved this issue

for appeal, but then ineffectively failed to raise it during Mr.

Bryan's direct appeal. This issue was previously raised in Mr.

Bryan's 1990 petition for habeas corpus relief. This Court ruled

that appellate counsel's error did not prejudice Mr. Bryan

"[g]iven the overwhelming evidence of guilt and after a careful

review of the record." Bryan v. Dugger, 641 So.2d 61 (Fla. 1994).

37

Mr. Bryan requests that this Court reconsider this ruling for two

reasons: 1) based on the new information regarding

trial/appellate counsel's alcoholism as outlined above; and, 2)

because this Court based its 1994 ruling on "the overwhelming

evidence of guilt" despite the fact that this was a penalty phase

claim dealing with the constitutional reliability of Mr. Bryan's

sentence (and evidence of guilt is irrelevant to sentencing

determinations).

Throughout the course of Mr. Bryan's trial, the state

utilized inflammatory comments and victim impact evidence to deny

Mr. Bryan a fair sentencing proceeding. Not only did the state

introduce evidence of victim sympathy, but actually featured

remarks about the "little old security guard" throughout the

trial. (R. 748-749; 754-55; 765; 954-55). The state also

improperly argued possible future dangerousness to the jury

during penalty phase closing. (R. 958). Lastly, the state went

so far in its closing as to argue that Mr. Bryan should be put to

death because he was a liar. (R. 958).

Such arguments were totally inappropriate and were designed

to arouse an emotional response from the jury unrelated to any

valid statutory aggravating factor. Furthermore, in the eyes of

the jury, the trial court expressed its approval of these

38

improper arguments when it failed to sustain counsel's objection.

The jury was never instructed that reliance on arguments such as

these was completely improper.

The Eighth Amendment requires that the sentencer consider

only specifically defined aggravating circumstances. Espinosa v.

Florida, 112 S. Ct. 2926 (1992); Stringer v. Black, 112 S. Ct.

1130 (1992); Maynard v. Cartwright, 108 S. Ct. 1853 (1988).

Further, under Florida law, future dangerousness is an

impermissible non-statutory aggravator. Dougan v. State, 470 So.

2d 697 (Fla. 1985). See King v. State, 514 So. 2d 354 (Fla.

1987).

The repeated argument on victim impact evidence was employed

solely to elicit maximum emotional impact. Florida law

recognizes the constitutionally unacceptable risk that a jury may

impose a sentence of death in an arbitrary and capricious manner

when exposed to victim impact evidence. See Grossman v. State,

525 So. 2d 833 (Fla. 1988). Furthermore, this Court has long

addressed the concern that the passions of the jury may not be

improperly inflamed as a matter of Florida law. Welty v. State,

402 So. 2d 1159 (Fla. 1981); Lewis v. State, 377 So. 2d 640 (Fla.

1979); Rowe v. State, 120 Fla. 649, 163 So. 22 (1935). The

state's inflammatory argument was neither germane to the issues

Eighth Amendment purposes. Espinosa v. U.S., 112 S.Ct. 2926

(1992); Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988)(en banc),

cert. denied, 109 S.Ct. 1353 (1989); Hitchcock v. Dugger, 481

U.S. 393 (1987).

39

of guilt nor probative on the issue of the character of the

defendant or the circumstances of the crime during sentencing,

but was introduced by the state solely for its inflammatory value

and to unduly prejudice the jury against Mr. Bryan.

Furthermore, the parade of improper remarks and evidence,

considered either individually or cumulatively, rendered Mr.

Bryan's trial fundamentally unfair (thus violating basic precepts

of capital jurisprudence) because they directed the jury's

attention away from the statutory aggravating circumstances they

were limited to in their consideration. The Eighth Amendment

requires an individualized and particularized sentencing. See

Penry v. Lynaugh, 109 S. Ct. 2934 (1989). Reversal is mandated

where the sentencer is contaminated by impermissible evidence or

and opinions of the crimes which have been rejected by this

Court. The sheer number of improper prosecutorial remarks

warrants relief under Florida law. Nowitzke v. State, 572 So. 2d

1346 (Fla. 1990). Both the jury and judge relied on improper

factors in reaching a sentence of death. Mr. Bryan's case

40

presents the constitutionally unacceptable risk that his sentence

was based on impermissible evidence in violation of the Eighth

Amendment.

Under Florida law, aggravating circumstances specified by

statute are exclusive, and no other circumstances or factors may

be used as aggravation for purposes of the imposition of the

death penalty. Elledge v. State, 346 So. 2d 998 (Fla. 1977);

Miller v. State, 373 So. 2d 882 (Fla. 1979). See also Riley v.

State, 366 So. 2d 19 (Fla. 1979); Robinson v. State, 520 So. 2d 1

(Fla. 1988). Discretion to impose the death penalty must be

"suitably directed and limited so as to minimize the risks of

wholly arbitrary and capricious action." Gregg v. Georgia, 428

U.S. 153, 189 (1976)(joint opinion of Stewart, Powell, and

Stevens, JJ.); Furman v. Georgia, 408 U.S. 238, 274

(1972)(Brennan, J., concurring). See also California v. Ramos,

463 U.S. 992, 999 (1983); Zant v. Stephens, 462 U.S. 862, 879

(1983); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

Arguments such as those presented in Mr. Bryan's case have

been long condemned as violative of due process. See Drake v.

Kemp, 762 F.2d 1449, 1458-61 (11th Cir. 1985)(en banc). Such

arguments render a sentence of death fundamentally unreliable and

unfair. Drake, 762 F.2d at 1460 ("[T]he remark's prejudice

41

exceeded even its factually misleading and legally incorrect

character ...."); Potts v. Zant, 734 F.2d 526, 536 (11th Cir.

1984)(because of improper prosecutorial argument, the jury may

have "failed to give its decision the independent and

unprejudiced consideration the law requires"). See also Wilson

v. Kemp, 777 F.2d 621 (11th Cir. 1985); Newlon v. Armontrout, 885

F.2d 1328, 1338 (8th Cir. 1989), quoting Coleman v. Brown, 802

F.2d 1227, 1239 (10th Cir. 1986)("'[a] decision on the propriety

of a closing argument must look to the Eighth Amendment's command

that a death sentence be based on a complete assessment of the

defendant's individual circumstances ... and the Fourteenth

Amendment's guarantee that no one be deprived of life without due

process of law'") (citations omitted).

In Mr. Bryan's case, basic Eighth Amendment requirements

were simply scorned. The state's arguments and the improper

victim impact evidence demonstrate plainly that Mr. Bryan's death

sentence was based upon "factors that are constitutionally

impermissible or totally irrelevant to the sentencing process,"

Stephens, and upon "caprice or emotion," Gardner, rather than

upon a reasoned, individualized or particularized assessment of

Mr. Bryan's "personal responsibility and moral guilt." Enmund v.

Florida, 458 U.S. 782, 801 (1982).

42

The state's highly improper arguments were not corrected by

the jury instructions. This prevented Mr. Bryan's jury from

providing the "particularized consideration" the Eighth Amendment

requires. This Eighth Amendment error requires reversal. As the

Supreme Court discussed in Caldwell v. Mississippi, 472 U.S. 320

(1985), "Because we cannot say that this [error] had no effect on

the sentence decision, that decision does not meet the standard

of reliability that the Eighth Amendment requires." Id., 472

U.S. at 341. Contamination occurred, an extra thumb was placed

on the death side of the scale of justice, and neither the Eighth

Amendment nor the Florida Constitution will permit a death

sentence to stand where there is such a risk of unreliability.

Stringer v. Black, 112 S. Ct. 1130 (1992). Here the record

proves that Mr. Bryan's death sentence rested on impermissible

considerations. Where defense counsel failed to object and move

for a mistrial, he was prejudicially deficient. In light of

Stringer, relief must be granted. This Court must reverse and

grant a new sentencing before a jury.

This record is replete with prosecutorial error. Mr. Bryan

was sentenced to death on the basis of the very constitutionally

impermissible "victim impact" evidence and improper argument

which this Court has condemned. Counsel's performance in this

43

regard was deficient. The victim impact evidence and improper

argument here was unmistakable. It simply cannot be said that

Mr. Bryan was not prejudiced as a result of appellate counsel's

glaring ignorance of relevant law. Counsel should have urged

this claim on direct appeal, and was ineffective for failing to

do so. As stated earlier, this claim was previously presented to

this Court, and this Court denied Mr. Bryan relief. Bryan v.

Duggar, 641 So.2d 61, 65 (Fla. 1994). However, based on the new

information regarding Mr. Bryan's trial/appellate counsel

presented above, fundamental fairness requires that this Court

now reconsider this issue and grant Mr. Bryan habeas relief.

44

CONCLUSION

For all of the reasons discussed herein, Petitioner

respectfully urges this Court to reconsider these issues and

either grant Mr. Bryan habeas corpus relief or re-open his direct

appeal. As stated earlier, in reviewing this claim, this Court

must consider that Mr. Stokes served both as trial and appellate

counsel for Mr. Bryan. Thus, his alcoholism and resulting

deficient performance at trial prejudiced his attempts to obtain

relief on direct appeal.

The prejudice to Mr. Bryan is layered: deficient

performance at trial which resulted in a death sentence, being

barred from raising claims on appeal due to deficient trial

performance, deficient performance on appeal, which results in

barring claims in both postconviction and state habeas

proceedings. The entire proceedings since 1983 have been

infected with error and neglect, and this Court can have no

confidence in the outcome of Mr. Bryan's trial, his appeal, or

any subsequent proceedings under these circumstances. Prejudice

is pervasive and obvious. There is a "reasonable probability

that, but for counsel's errors [resulting from his alcoholism],

the result of the proceeding[s] would have been different"

Strickland, 466 U.S. at 694. Mr. Bryan is entitled to relief.

45

I HEREBY CERTIFY that a true copy of the foregoing Petition

has been furnished by ___________________ to all counsel of

record on October ___, 1999.

GREGORY C. SMITH

Capital Collateral Counsel

Northern Region

Florida Bar No. 279080

______________________________

ANDREW THOMAS

Chief Assistant CCC-NR

Florida Bar No. 0317942

OFFICE OF THE CAPITAL COLLATERAL

COUNSEL - NORTHERN REGION

1533-B South Monroe Street

Tallahassee, Florida 32301

(850) 488-7200

Counsel for Petitioner/Appellant

Copy furnished to:

Richard Martell

Assistant Attorney General

Department of Legal Affairs

The Capitol - PL01

Tallahassee, Florida 32399-1050