         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                      June 20, 2006 Session

                   RICKY R. BRYAN v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                              No. F-57092    Don R. Ash, Judge



                      No. M2005-02889-CCA-R3-PC Filed August 2, 2006



The Appellant, Ricky R. Bryan, appeals the judgment of the Rutherford County Circuit Court
denying post-conviction relief. Bryan was convicted of first degree murder and subsequently
sentenced to life in prison without the possibility of parole. On appeal, Bryan argues that he was
denied his Sixth Amendment right to the effective assistance of counsel, specifically arguing that
trial counsel was ineffective for failing to introduce evidence of third party guilt in the homicide.
After review, the judgment of the post-conviction court is affirmed.

                 Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and NORMA
MCGEE OGLE, JJ., joined.

Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellant, Ricky R. Bryan.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

         This case has a long and varied procedural history. The Appellant was first convicted of the
murder of the victim, Charlotte Scott, in 1995. However, at the conclusion of that first trial, the trial
court, acting as the thirteenth juror, granted the Appellant’s motion for a new trial. State v. Ricky
Raymond Bryan, No. M2002-03015-CCA-R3-CD (Tenn. Crim. App. at Nashville, May 24, 2004).
Following a second trial, the Appellant was again found guilty of first degree murder and sentenced
to life imprisonment. Id. However, on direct appeal, a panel of this court remanded the case for a
new trial based upon a finding that the introduction of the Appellant’s statement had violated his
Fifth Amendment right against self-incrimination. Id. Following a third trial, the Appellant was
again convicted of first degree murder and received a sentence of life imprisonment without the
possibility of parole. Id. That conviction was affirmed by a panel of this court on direct appeal. Id.


        The facts of the case, as established on direct appeal of the Appellant’s third conviction, are
as follows:

                The victim’s family filed a missing person report with the Metro Nashville
        Police Department on Tuesday, October 18, 1994. The report indicated that the
        seventy-two year old victim disappeared from her apartment some time between
        October 15 and October 16. David Miller, a homicide detective with the police
        department at the time of the offense, conducted the initial search of the victim’s
        apartment. The apartment was neat and orderly and showed no signs of a struggle.
        The coffee pot was filled with water and coffee, a routine the victim generally
        performed prior to retiring for the evening. The victim’s car was parked in front of
        the apartment building and showed no sign of tampering. A luminol test did not
        detect the presence of any blood in either the apartment or the victim’s car. Detective
        Miller found a drug store receipt in a trash can showing that a prescription for the
        victim was filled at 3:48 p.m. on Saturday, October 15.

                Detective Miller then investigated whether the victim’s bank account
        reflected any recent activity. An initial discussion with First American National
        Bank, the victim’s bank, revealed that the victim’s bank card had been used to
        withdraw $40.00 from a First American Bank automated teller machine (ATM)
        sometime after 3:00 p.m. on Friday, October 14 and before Monday morning,
        October 17. Three other inquiries between October 14 and October 17 were made
        with the victim’s bank card after the $40.00 cash withdrawal at a First Tennessee
        Bank ATM located at Nipper’s Corner.1

                The victim’s family told Detective Miller that Ms. Scott had been dating
        Defendant for a period of time but had recently broken off the relationship. Detective
        Miller interviewed Defendant at his workplace on October 28, and Defendant said
        that he did not know where the victim was. Defendant told Detective Miller that he
        first met the victim in 1988 when he was thirty-two years old. The victim told
        Defendant she was fifty years old. After their initial meeting, the couple dated until
        August 1994 when the victim became angry with Defendant because he fixed a
        bicycle for a girl who lived in the victim’s neighborhood. . . . On Friday, October 14,
        the victim called Defendant and they talked for fifteen or twenty minutes. Defendant
        said that he worked on Saturday, October 15, and did not see the victim. The next


        1
         The first of the three transactions was an attempt to withdraw $200, the second was an attempt to withdraw
$100, and the third transaction was an inquiry as to the account’s balance. Bryan, M2002-03015-CCA-R3-CD..

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day, Defendant and his daughter, Kimberly Bryan Cowart, stopped by the victim’s
apartment after church. Although the victim’s car was parked outside the building,
she did not answer Defendant’s knock, and Defendant and his daughter left. During
the interview, Detective Miller noticed a long scratch along the left side of
Defendant’s face but no other bruises, scrapes or scratches.

         At the time of the offense, [Miss] Cowart was ten years old. Detective Miller
interviewed [Miss] Cowart on November 3. . . . [Miss] Cowart and Defendant
stopped by the victim’s apartment on October 16 after church, but the victim was not
home. [Miss] Cowart said that she and Defendant then went to Nipper’s Corner, and
Defendant attempted to retrieve some money from an ATM with a bank card. At
trial, [Miss] Cowart added that before she and her father went to church on October
16, Defendant paced back and forth in their apartment repeating, “I don’t want to go
to jail.”

       ....

        Detective Miller interviewed Defendant again on November 4 after his
conversation with [Miss] Cowart. At this time, Defendant gave a second statement
in which he admitted that he tried to withdraw some money with the victim’s bank
card at a First Tennessee ATM located at Nipper’s Corner “on the day [the victim]
could not be found.”

       ....

        Danny Bryan, Defendant’s brother, testified that Defendant had dated the
victim about seven years. On November 6, after dinner at a local steakhouse,
Defendant told Mr. Bryan that he wanted to speak with him in private. Later that
evening, the two men walked to a set of railroad tracks which ran between an
apartment complex and a shopping center near Defendant’s house. Defendant told
Mr. Bryan that he knew where the victim was because he had buried her in a rock
quarry near Sam Ridley Parkway. Defendant told Mr. Bryan that the victim asked
him to come to her house on October 15 when she telephoned that night. Defendant
waited until his daughter was asleep and then drove to the victim’s house around
midnight. The victim suggested that they go to the rock quarry so they could talk.
After they arrived, the victim told Defendant that she wanted something to eat, and
Defendant left the victim sitting alone on a blanket while he went back into town to
get some food. When he returned, Defendant could not find the victim. Defendant
told Mr. Bryan he spotted a vehicle down the road and heard three or four male
voices. After the men left, Defendant explored the area where the men had been and
found the victim dead. Defendant said that he pulled the victim into the woods by
her legs and buried her. When Mr. Bryan asked why he buried the victim, Defendant



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responded that he did so because he was scared. Defendant denied that he had
anything to do with the victim’s death.

        ....

        Clayton Thomas, an investigator with the Smyrna police department at the
time of the offense, testified that the police initiated a search of the area surrounding
the rock quarry near Sam Ridley Parkway on November 7 based on the general
information provided by Danny Bryan. . . . The rocky and woody terrain was
difficult to negotiate, and eventually this search was unproductive.

        ....

         [Michael] Thompson [Defendant’s step-nephew] asked Defendant if there
was anything he could do to help him. Defendant told Mr. Thompson that when he
went to the rock quarry to search for the victim, he had left behind a rake and shovel.
Defendant drew a map in the notebook to show Mr. Thompson where to find the
tools. Defendant noted the location of Sam Ridley Parkway, LaVergne High School,
and an access road leading to the rock quarry on the map. Defendant indicated that
the rake and shovel were located about fifteen feet from the access road. He said that
the pit located in this area was filled with debris and old mattresses which Defendant
used to hide the tools. Defendant then burned the map. Mr. Thompson, however,
described the location of the tools based on the information provided by Defendant
to Officer Thomas. Police officers searched the area indicated on Defendant’s map
and within minutes found the victim’s body in a debris-filled pit.

        Rosa Bryan [wife of Defendant’s brother Danny] discovered the notebook in
December while she and her husband were staying in Defendant’s house after his
arrest and gave it to Officer Thomas. At trial, Grant Sperry was qualified as an
expert in forensic document examination. Based on the decipherable impressions
and indented writings found in the notebook, Mr. Sperry was able to make out some
of the words on a drawing that appeared to be a map including, among others, “Sam
Ridley,” “school,” “shovel and rake,” and “where dozer has cleared.” Mr. Sperry
compared the features and characteristics of the indented writings on the notebook’s
remaining pages with known samples of Defendant’s handwriting. Based on this
comparison, Mr. Sperry testified that the indented writings in the notebook had been
made by Defendant.

        ....

Doctor Charles Harlan performed the autopsy on the victim and testified that the
victim had suffered numerous injuries both before and after death. . . . The victim’s
death . . . resulted from a blunt force trauma to the chest which fractured the victim’s


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         ribs in forty-four places. . . . After the victim had died, she was stabbed several times
         in the abdomen and on the thighs and both of her breasts were amputated.

Id.

        On May 18, 2005, the Appellant filed a pro se petition for post-conviction relief alleging,
among other grounds, ineffective assistance of counsel. Counsel was later appointed, and an
amended petition was filed on September 26, 2005. A post-conviction hearing was held on
November 14, 2005, at which only the Appellant and trial counsel testified. The Appellant’s alleged
claim of ineffective assistance of counsel was based solely upon trial counsel’s failure “to investigate
and utilize handwriting expert’s opinions.”

         The Appellant testified that he received numerous letters from his daughter-in-law, Ruth Ann
Bryan, while he was in jail. He further stated that on a letter he received January 15, 1998, he
noticed “an indention” on the paper left from previous writings on the same pad. He testified that
“out of pure curiosity,” he tried to read the underlying impressions by shading the area with graphite.
Based upon what he saw, the Appellant sent several of the letters to his family, and his uncle hired
a handwriting expert to examine and compare the impressions with the handwriting contained in the
letters purportedly written by Ruth Ann Bryan. Following his examination, the handwriting expert
sent a report back to the Appellant which indicated that the person who made the impressions was
the same person who had written the original letters, presumably Ms. Bryan. The report also
contained partial phrases that the expert was able to “pull out” from the impressions. The recovered
portions included a shopping list and the phrase “I seen Mom’s p when she was here. It would look
good cut out and framed.” A separate letter contained impressions from which the expert was able
to “pull out” the following fragments: “Kill the - - off the - -. Floors of - - good. To the car.” A
separate impression read, “Shannon raised his car after I stole it October 15, 1994.” A separate letter
contained an impression which read, “This is funny. I killed the B. I killed the W. I killed the P that
Rick will not F anymore. Ha ha.” Finally, the expert was able to identify one impression which
stated, “I killed Lottie.”

        The Appellant testified that he informed trial counsel of the expert’s findings, providing him
with a copy of the report, but that trial counsel referred to them as “garbage” and would not use them
during trial. During his testimony, the Appellant acknowledged that it was only after he observed
the State’s technique in procuring the incriminating map against him that he had the impressions
analyzed by his own expert.2 However, he asserts that if the letters, along with the expert’s
testimony had been presented at trial, the jury might have believed someone other than himself
committed the murder.




         2
          Moreover, testimony at the hearing established that within the portion of the envelope which is sealed by glue,
in which the impressed letters were contained, were the instructions, “Address this to Ricky Bryan. Mail back to
Rutherford County Jail.”

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        Trial counsel testified that he was provided a copy of the report prepared by the handwriting
expert. Counsel related that during a pretrial discussion of the impressions, the Appellant informed
him that he did not believe Ms. Bryan committed the murder because Ms. Bryan “barely knew” the
victim and had no reason to harm her. Moreover, during pretrial discussions, trial counsel noted that
the facts, as provided by the impressions, with regard to how the murder was committed were
completely inconsistent with any version of the facts provided by the Appellant, which were being
relied upon in his defense. Based upon the determination of trial counsel and the Appellant that the
impressions could not be “matched up” with any of the Appellant’s three different versions as to his
actions and the Appellant’s belief that Ruth Ann Bryan did not commit the murder, a decision was
made not to utilize the impressions. Trial counsel noted this decision was made only after
consultation with the Appellant. Following the presentation of evidence, the post-conviction court
entered an ordering denying the Appellant’s petition for post-conviction relief, from which the
Appellant filed a timely notice of appeal.

                                              Analysis

         To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the
burden of establishing the allegations set forth in his petition by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2003). The Appellant must demonstrate that counsel's representation fell
below the range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984), the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency. The petitioner is not entitled to the benefit of hindsight, may not second-guess a
reasonably based trial strategy, and cannot criticize a sound, but unsuccessful, tactical decision made
during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994). This deference to the tactical decisions of trial counsel is dependent upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992).

       It is unnecessary for a court to address deficiency and prejudice in any particular order,
or even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
 U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068).

        The issues of deficient performance by counsel and possible prejudice to the defense are
mixed questions of law and fact. Id. at 461. “[A] trial court's findings of fact underlying a claim of
ineffective assistance of counsel are reviewed on appeal under a de novo standard, accompanied with
a presumption that those findings are correct unless the preponderance of the evidence is otherwise.”
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing Tenn. R. App. P. 13(d); Henley v. State, 960



                                                 -6-
S.W.2d 572, 578 (Tenn. 1997)). However, conclusions of law, are reviewed under a purely de novo
standard with no presumption that the post-conviction court's findings are correct. Id.

       On appeal, the Appellant argues that trial counsel was ineffective in that he failed “to utilize
indented letters [or impressions] indicating someone other than the [Appellant] killed the victim and
the expert testimony regarding the same.” Thus, with regard to this allegation, the Appellant is
required to establish by clear and convincing evidence (1) that the proffered “indented letters” would
have been admitted at trial and (2) that there is a reasonable probability that the trial would have
concluded differently if counsel had performed as suggested. In Holmes v. South Carolina, 547 U.S.
___, 126 S. Ct. 1727 (2006), the United States Supreme Court recently reiterated the long standing
evidentiary rule:

        Evidence offered by accused as to the commission of the crime by another person
        must be limited to such facts as are inconsistent with his own guilt, and to such facts
        as raise a reasonable inference or presumption as to his own innocence; evidence
        which can have (no) other effect than to cast a bare suspicion upon another, or to
        raise a conjectural inference as to the commission of the crime by another, is not
        admissible . . . . Before such testimony can be received, there must be such proof of
        connection with it, such a train of facts or circumstances, as tends clearly to point out
        such other person as the guilty party.

547 U.S. at ___, 126 S. Ct. at 1734. (Internal citations omitted).

In similar fashion, our supreme court held that a defendant is entitled to present evidence implicating
another in the crime only if the evidence is relevant under Tennessee Rule of Evidence 401 and the
evidence is not unfairly prejudicial as provided by Rule 403. State v. Powers, 101 S.W.3d 383, 395
(Tenn. 2003). In a criminal case, evidence that a third party had the motive and opportunity to
commit the offense certainly would be relevant. Id. at 395.

        At the post-conviction hearing, trial counsel testified that, after discussing the issue with the
Appellant, the decision was made not to utilize the impressions at trial, as they could not be
reconciled with the Appellant’s various versions of the events and because the Appellant did not
believe that his sister-in-law murdered the victim. On appeal, the State argues that trial counsel’s
decision not to present third-party guilt was strategic and that post-conviction relief was properly
denied.

        In its order denying relief, the post-conviction court held as follows:

               This Court finds [trial counsel’s] performance was not deficient in any
        manner and the [Appellant] was not prejudiced by the representation. [Trial
        counsel’s] performed with extraordinary training and skill and protected the
        [Appellant’s] interest with every decision and strategy pursued in his defense. This
        Court further does not find the alleged evidence presented by [the Appellant] to be


                                                  -7-
       credible nor his testimony at the hearing to be credible. Therefore, this Court holds
       the [Appellant] has failed to prove by clear and convincing evidence his claim of
       ineffective assistance of counsel.

After review, we find nothing in the record to preponderate against the post-conviction court’s
findings.

        Moreover, the record demonstrates that trial counsel’s decision to forego use of the purported
impression evidence, which the trial court found was not credible, was made following consultation
with the Appellant and obtaining the Appellant’s consent. As noted, trial counsel was unable to
reconcile the impressions with the Appellant’s version of the facts, and the Appellant did not believe
the evidence was accurate. Accordingly, we conclude that trial counsel’s election not to utilize the
impression evidence constituted an informed tactical decision that was warranted under the facts of
this case.

                                          CONCLUSION

         Based upon the foregoing, the Rutherford County Circuit Court’s denial of post-conviction
relief is affirmed.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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