Arthur Bryant v. Richard Brown

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6878433-1] [6878433] [15-3144]

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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 prisoner, 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 participate in the decision of this case, which is being resolved by a quorum of
the panel under 28 U.S.C. § 46(d).

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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 Indiana 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 surreptitiousrecording 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 argument, 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, reiterating 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

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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 relationship with his stepmother. They discovered some rap

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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 nearby 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. Detective 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 domesticviolence 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-

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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.

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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 crossexamined 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 responded that he was on parole for theft, burglary, and a
weapons offense.
The jury found Bryant guilty as charged. On direct appeal 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

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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 mother 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 incriminating 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.

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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 judgments. 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 defense 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 statements 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

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court reasonably applied the Strickland standard to each of
Bryant’s claims. The judge faulted the state court’s conclusion that the failure to interview Beemer was not deficient
performance; that ruling, the judge thought, was unreasonable. 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 contrary 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 presented.” 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 understood and comprehended in existing law beyond any possibility 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

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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 probability 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 object to Detective Whelan’s testimony about Bryant’s incriminating 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 unrelated to the merits—to avoid irritating the jury, for example, or
to refrain from highlighting unfavorable evidence or creating 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

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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 probability 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 particular 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 successful. 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 crossexamination 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.

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3. Failure to Object to Ringer’s Testimony About
Bryant’s Prior Convictions

Bryant’s counsel did not object to the jury’s inquiry during 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 receptiveness 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 professional 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 provide some explanatory context. Counsel explained that at the
time of trial, she did not think Ringer’s answer to the question 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.

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Again, in hindsight this line of questioning was a mistake. 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 unreasonable 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 decision 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-

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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 prosecution 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 otherwise 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).

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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 suppressed 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 evidence pointing to Bryant’s guilt, the state appellate court’s
materiality ruling was well within the bounds of reason.

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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.