PUBLISH
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________ FILED U.S. COURT OF APPEALS No. 99-6178 ELEVENTH CIRCUIT MAY 16 2000 __________________________ THOMAS K. KAHN CLERK D.C. Docket No. 93-B-0958-S
DANNY JOE BRADLEY,
Petitioner-Appellant,
versus
JOHN E. NAGLE, Warden, et al.,
Respondents-Appellees. __________________________
Appeal from the United States District Court for the Northern District of Alabama __________________________ (May 16, 2000)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.
BARKETT, Circuit Judge:
Danny Joe Bradley appeals the denial of his petition for habeas
corpus, filed pursuant to 28 U.S.C. § 2254. On appeal, Bradley asserts the same
claims for relief asserted before the district court: 1. His conviction was obtained by use of evidence gained pursuant to an unlawful arrest and an unconstitutional search and seizure, in violation of the Fourth, Fifth, and Fourteenth Amendments.
2. The State violated his due process rights by failing to disclose material exculpatory evidence which was in its possession and which was sought in discovery by Bradley’s counsel prior to trial.
3. His conviction should be reversed because the evidence was insufficient to support the finding that he committed a murder “during the commission” of a rape or sodomy in the first degree (i.e., a sexual offense involving “forcible compulsion”) and thus the conviction violates the Fourteenth Amendment.
4. His sentence violates the Eighth Amendment because the evidence did not support the application of the statutory aggravating circumstance that the capital offense was committed while he was engaged in the commission of a rape.
5. His sentence violates the Eighth Amendment because the evidence did not support the application of the statutory aggravating circumstance that the offense of which he was convicted was “especially heinous, atrocious or cruel compared to other capital offenses.”
BACKGROUND
On January 24, 1983, twelve-year-old Rhonda Hardin and her younger
brother, Gary “Bubba” Hardin, were left in the care of their stepfather, Danny Joe
Bradley. The children’s mother, Judy Bradley, had been hospitalized for more
than one week. The children normally slept in one bedroom of the residence and
Danny Joe Bradley and Mrs. Bradley in another. On the night of January 24, 1983,
Jimmy Isaac, Johnny Bishop, and Dianne Mobley went to the Bradley home where
they saw Rhonda and Bubba together with Danny Joe Bradley. When Bishop,
2 Mobley, and Isaac left the Bradley home at approximately 8:00 p.m., Rhonda was
watching television with Bubba and Bradley. Rhonda was lying on the couch,
having taken some medicine earlier in the evening. She asked Bubba to wake her
if she fell asleep so that she could move to the bedroom. When Bubba decided to
go to bed, Bradley told him not to wake Rhonda but to leave her on the couch.
Bradley also told Bubba to go to sleep in the room normally occupied by Mr. and
Mrs. Bradley instead of his own bedroom.
At approximately 11:30 p.m., Bradley arrived at the home of his brother-in-
law, Robert Roland. Roland testified that Bradley arrived driving his automobile
and that he was “upset” and “acted funny.” Roland testified that Bradley “talked
loud and acted like he was nervous and all, which [Roland] had never seen him do
before.” Bradley’s father-in-law, Ed Bennett, testified that Bradley came to his
house at approximately midnight and told him that Rhonda was gone. Bradley’s
next-door neighbor, Phillip Manus, testified that at approximately 12:50 a.m.,
Bradley appeared at his home. Manus testified that Bradley told him that he and
Rhonda had argued over some pills Rhonda wanted to take. He claimed that he
had fallen asleep and when he awoke, Rhonda was missing. Bradley then said
“[l]et me run over to Rhonda’s grandma’s house and I’ll be back in a few minutes.”
Bradley returned ten or fifteen minutes later. Manus suggested that they walk to
3 the hospital to tell Judy Bradley that Rhonda was missing. Manus testified that
Bradley wanted to go to the hospital rather than report Rhonda’s disappearance to
the police. Manus and Bradley waited at the hospital for one and one-half hours
before they were able to enter Mrs. Bradley’s room. Throughout that period of
time, Manus tried to persuade Bradley to go to the police station to report that
Rhonda was missing. When the men eventually saw Mrs. Bradley, she told Danny
Joe Bradley to report Rhonda’s disappearance to the police.
Manus and Bradley went to the police station where Bradley told Officer
Ricky Doyle that Rhonda was missing. Bradley also told Officer Doyle that he and
Rhonda had argued earlier in the evening and that she had left the house sometime
around 11:00 or 11:30 p.m. Bradley claimed that he had fallen asleep and that
when he awoke, Rhonda was gone. He stated that he left the house at 11:30 p.m. to
go to his neighbor’s house to look for Rhonda. Bradley specifically indicated that
he had not left the house until he began looking for Rhonda and that he went to the
Manus home when he learned that Rhonda was missing. After talking with Officer
Doyle, Bradley and Manus returned to Manus’s apartment.
At approximately 7:30 a.m. on January 25, 1983, Rhonda’s body was found
in a wooded area less than six-tenths of a mile from Bradley’s apartment.
Rhonda’s body was dressed in a pair of maroon-colored corduroy pants, a short-
4 sleeved red knit shirt, green, white, brown, and purple striped leg warmers, a bra,
and a blue windbreaker. Rhonda’s tennis shoes were tied in single knots. Several
members of her family testified that she always tied her shoes in double knots.
Within ninety minutes after Rhonda’s body was discovered, two plainclothes
officers from the Piedmont Police Department arrived at Bradley’s residence. The
officers had neither an arrest warrant nor probable cause. Although the
government contends that Bradley was not placed under arrest at that time, Bradley
claims that he was told he was under arrest for suspicion of murder, handcuffed,
placed in a police vehicle, and taken to the Police Station, where an interrogation
began at around 9:30 a.m. Bradley was in the custody of the Piedmont Police from
that time until approximately 4:00 a.m. on the following morning. During this
period of almost nineteen hours, the officers read Bradley his Miranda rights and
questioned him. Bradley told the police that he had discovered Rhonda missing at
approximately 11:20 or 11:25 p.m. and had gone to Phillip Manus’s house in
search of her. He also told officers that he had not left the apartment until he began
his search for Rhonda.
In addition to giving a statement, Bradley executed a consent-to-search form
authorizing the police to search his residence and his automobile, submitted to
fingernail scraping, and was transported to and from Birmingham, Alabama.
5 While in Birmingham, he submitted to a polygraph test and blood and saliva tests,
and gave his clothing to the authorities. Although Bradley cooperated with the
police in their investigation during this time period, he claims that he did so
because the police clearly indicated to him that he would remain in police custody
unless he cooperated. After obtaining the consent-to-search form, the police
searched his residence and his automobile, seizing several items of physical
evidence. Among the seized items of evidence were a pillowcase, a damp blue
towel from a bathroom closet, the living room light switch plate cover, a red,
white, and blue sheet from the children’s bedroom, a white “heavy” sheet from the
washing machine, and fiber samples from the trunk of Bradley’s automobile.
Prior to the trial, the court denied Bradley’s two motions to suppress this evidence.
At trial, the State presented testimony that, contrary to Bradley’s statements
to police on both January 24 and January 25, 1983, Police Officer Bruce Murphy
had seen Bradley in his car at 9:30 p.m. in the area where Rhonda’s body was
discovered. Officer Murphy, who had known Bradley for more than twenty years,
positively identified him. The State’s forensic evidence demonstrated that
Bradley’s fingernail scrapings matched the red, white, and blue sheet taken from
the children’s bedroom, the fibers from the leg warmers found on Rhonda’s body,
and the cotton from the pants Rhonda was wearing on January 24, 1983. The State
6 also proved that fibers found in the trunk of Danny Joe Bradley’s car matched the
fibers from Rhonda’s clothing. A pathologist testified that Rhonda’s body had
“evidence of trauma – that is, bruises and abrasions on her neck.” She had seven
wounds on her neck; the largest was an abrasion over her Adam’s apple. The
pathologist testified that he had taken swab and substance smears from Rhonda’s
mouth, rectum, and vagina. He also removed the gastric contents from Rhonda’s
stomach and turned them over to the toxicologist.
An expert in forensic serology testified that Danny Joe Bradley and Rhonda
Hardin were of type O blood. Bradley is a non-secretor of the H-antigen. Rhonda
was a secretor. The serology expert testified that the H-antigen was not present in
the semen taken from the rectal swab of Rhonda. The rectum does not produce
secretions or H-antigens. On the inside of Rhonda’s pants, a stain containing a
mixture of fecal-semen was found with spermatozoa present. The pillowcase
found in the bathroom revealed high levels of seminal plasma and spermatozoa
consistent with the type O blood group. There were small blood stains on the
pillowcase mixed with saliva. These stains were also consistent with an O blood
group.
The red, white, and blue sheet on the bed in the children’s bedroom
contained a four by two and one-half inch stain which included spermatozoa. The
7 white blanket which had been placed in the washing machine also had two large
stains consistent with fecal-semen. In both stains, spermatozoa was present and no
H-antigens were detected. A combination of semen and sperm with the H-antigen
was found on the blue towel located in the bathroom. Although the written report
indicated that the blue towel contained a fecal-semen stain containing the H-
antigen, the expert testified at trial that her analysis revealed that the towel
contained a vaginal-semen stain not a fecal-semen stain and that the word fecal
instead of vaginal had been essentially a scriveners’ error.1 She testified that
because the blue towel contained a vaginal semen stain, the H-antigen secretions
could have come from Rhonda’s vaginal secretions. The serologist testified that the
low level of H-antigen was consistent with a female secretor because the H-antigen
is present in low levels in the vagina. The mattress cover contained a number of
seminal stains.
At trial, Bradley’s sister-in-law also testified that a day after Rhonda’s
funeral she heard Bradley say “I know deep down in my heart that I done it,” and
Bradley’s stepson, Bubba Hardin, testified that Bradley had frequently rendered the
children unconscious by squeezing their necks.
1 Had it been a fecal-semen stain containing the H-antigen, it could not have come from either Bradley or Rhonda as Bradley was a non-secretor and the rectum does not secrete the H-antigen.
8 Bradley testified in his own defense. He explained his inconsistent
statements to police by suggesting that he had left his home at the time he was
observed by Officer Murphy, because he had intended to steal a car, remove its
motor, and sell it. He claimed that Gary Hardin, the father of Bubba and Rhonda,
had asked him to obtain such a motor. Hardin testified that he had made no such
request.
The jury returned a verdict of guilty of capital murder on counts one and
three of the indictment. These counts charged murder during the commission of a
rape or sodomy in the first degree. The same jury deliberated in the punishment
phase and recommended twelve to zero that Bradley be sentenced to death.
Bradley’s conviction, which was predicated on Alabama Code § 13A-5-40(a)(3)
(1975), was affirmed by the Alabama Court of Criminal Appeals on November 26,
1985. Bradley v. State, 494 So.2d 750 (Ala. Crim. App. 1985). The Court of
Criminal Appeals denied rehearing on January 7, 1986. The Supreme Court of
Alabama affirmed Bradley’s conviction 5-4 on July 25, 1986. Ex parte Bradley,
494 So.2d 772 (Ala. 1986). Rehearing was denied on September 12, 1986.
Bradley filed a petition for writ of certiorari before the Supreme Court of the
United States which was denied on March 9, 1987, with Justices Brennan,
9 Marshall, and White dissenting from the denial. Williams v. Ohio, 480 U.S. 923
(1987).
On June 4, 1987, Bradley filed a Petition for Writ of Error Coram Nobis
and/or Motion for Relief from Judgment. On January 9, 1989, the Circuit Court
for Calhoun County, Alabama denied Bradley’s petition for extraordinary relief.
The Alabama Court of Criminal Appeals affirmed. Bradley v. State, 557 So.2d
1339 (Ala. Crim. App. 1989). A petition for writ of certiorari to the Alabama
Supreme Court was denied in February of 1990. The United States Supreme Court
denied certiorari, with Justice Marshall dissenting. Bradley v. Alabama, 498 U.S.
881 (1990). Bradley then filed this petition for habeas corpus in the district court
pursuant to 28 U.S.C. § 2254. The district court denied the petition, and Bradley
now appeals. For the reasons that follow, we affirm the district court’s denial of
relief in this case. We address each claim in turn.
DISCUSSION
I. Claim 1: The conviction should be reversed because evidence was obtained pursuant to an illegal arrest.
In his first argument, Bradley asserts that neither his statement nor the
evidence obtained from his home should have been admitted at trial because both
were obtained in violation of the Fourth and Fifth Amendments to the Constitution.
As to Bradley’s argument that his Fourth Amendment rights were violated, we find
10 that the district court correctly ruled that it was precluded from reviewing that
claim. The Supreme Court, in Stone v. Powell, has held that federal courts are
precluded from conducting post-conviction review of Fourth Amendment claims
where state courts have provided “an opportunity for full and fair litigation” of
those claims. 428 U.S. 465, 494 (1976).
In Stone, the Court reasoned that, so long as a defendant has had the
opportunity to present his Fourth Amendment claims to the state trial and appellate
courts, the objectives of the exclusionary rule have been satisfied. This Court’s
predecessor has held that “full and fair consideration” in the context of the Fourth
Amendment includes “at least one evidentiary hearing in a trial court and the
availability of meaningful appellate review when there are facts in dispute, and full
consideration by an appellate court when the facts are not in dispute.” Carver v.
Alabama, 577 F.2d 1188, 1191 (5th Cir. 1978).2
Bradley does not contend that he was denied the opportunity to present facts
to the trial court or to argue the issue before an appellate court, and in fact he did
so. Rather, he argues that the procedural bar of Stone should not apply here
because the Alabama courts applied the law incorrectly in evaluating his claim.
2 We have adopted the decisions of the United States Court of Appeals for the Fifth Circuit decided prior to September 30, 1981, as binding precedent of the Eleventh Circuit. Bonner v. Pritchard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc).
11 The Alabama Court of Criminal Appeals determined that Bradley’s statement and
consent-to-search were sufficiently attenuated from Bradley’s illegal arrest to
render them admissible under the Fourth Amendment. In so concluding, the court
relied heavily on the fact that, prior to his arrest, Bradley had initiated contact with
the police, had made statements materially similar to those made after the arrest,
and was generally cooperative. Given this pre-arrest conduct, the court concluded
that Bradley had his own motives for continuing to cooperate with the police, and
that such cooperation was therefore not the result of the illegal arrest. Although
another court might not agree that Bradley’s pre-arrest conduct could serve as an
“intervening event” for the purposes of demonstrating attenuation between the
illegal arrest and the statements Bradley gave, the Alabama courts did fully
consider Bradley’s claims and the caselaw on which he relied, and having done so,
based their rulings on cases which did hold that pre-arrest conduct could be
considered as an intervening event. We cannot now say that Bradley was denied a
full and fair opportunity to litigate his Fourth Amendment claims, even were we to
disagree with the state courts’ analysis or conclusion. To do so would vitiate the
Supreme Court’s decision in Stone, which we are not empowered to do.
Bradley also argues that the statement he gave to police while in custody
should have been suppressed under the protection of the Fifth Amendment because
12 it was involuntary. It is clear that when Bradley was taken in handcuffs without a
warrant to the police station, he was in fact arrested, and the arrest was illegal. The
district court, and the Alabama Court of Criminal Appeals before it, so held on the
grounds that the police had neither a warrant nor probable cause to arrest.
Because Bradley was illegally arrested, in order the satisfy the protections of
the Fifth Amendment, the State had to prove that any evidence obtained pursuant
to that arrest was purged of the taint of illegality, or was given knowingly,
intelligently, and voluntarily. Bradley does not claim that his waiver was
unknowing or unintelligent. Rather, he claims that his waiver was not voluntary
because the police told him that the sooner he cooperated, the sooner he would be
allowed to leave. Thus, our inquiry is limited to the question whether
“relinquishment of the right was voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion or deception.”
Dunkins v. Thigpen, 854 F.2d 394, 398 (11th Cir. 1988) (quoting Moran v.
Burbine, 475 U.S. 412 (1986)).
To support his position, Bradley directs us to United States v. McCaleb, 522
F.2d 717 (6th Cir. 1977), in which the Sixth Circuit held that, for the purposes of
analyzing voluntariness under a Fourth Amendment claim, the fact that the
defendants had been told that they would remain in detention if they did not
13 consent to a search was a relevant factor in assessing the voluntariness of a consent
to search. We do not find McCaleb persuasive because it is quite dissimilar to the
case before us. In McCaleb, the totality of the circumstances indicated only that
the illegally arrested citizen merely unlocked his suitcase after the detaining
officers told him that he and his companions would remain in detention until the
officers obtained a warrant. Neither an oral consent nor a consent in writing was
obtained by the officers. The court in that case found that the circumstances did
not reflect a free and voluntary consent.
In this case, Bradley was cooperative during his extensive conversations
with the police and ultimately expressed his consent to allow the police to search
his car and his home affirmatively by agreeing orally and in writing. Bradley
allowed the police to collect fingernail scrapings, blood, and saliva samples. He
also submitted to a polygraph examination. Moreover, the detaining officers did
not indicate to him that they would obtain a search warrant absent his cooperation,
and, as the Alabama state courts noted, after being informed of his Miranda rights
before giving his statement and signing a consent-to-search form, Bradley
expressly stated that he did not need a lawyer because he had “nothing to hide.”
We recognize that the giving of a Miranda warning is not necessarily dispositive of
the question of voluntariness. However, the suggestion that cooperation would
14 yield a speedier release, when considered under the totality of the circumstances
here, does not constitute sufficient “police overreaching or coercion” to invalidate
Bradley’s waiver of his Miranda rights. Dunkins, 854 F.2d at 399.
II. Claim 2: The conviction should be reversed because the State violated Brady v.
Maryland.
Bradley contends that the State suppressed three items of exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the
exclusion of the evidence was sufficiently prejudicial to warrant a new trial under
Kyles v. Whitley, 514 U.S. 419 (1995). The allegedly withheld items of evidence
were: 1) the identity of the person to whom a Rickey McBrayer allegedly said that
he had killed Rhonda;3 2) notes taken by the police concerning a call from an
anonymous woman saying that a Keith Sanford killed Rhonda; and 3) the fact that
the police had received a note stating that a Ricky Maxwell killed Rhonda.4
In order to demonstrate a Brady violation, Bradley must prove 1) that the
evidence was favorable to him because it was exculpatory or impeaching; 2) that
the evidence was suppressed by the State, either willfully or inadvertently; and 3)
3 Although the prosecution told Bradley that McBrayer had confessed, they did not disclose the identity of the person to whom McBrayer had confessed. 4 Sheriff’s deputies from Cherokee County, Alabama, received the note from an Anita Kay Beecham while she was reporting being assaulted by her live-in boyfriend, Ricky Maxwell.
15 that the evidence was material and, therefore, that the failure to disclose it was
prejudicial. See Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999). Under Brady,
excluded evidence is material “if there is a reasonable probability 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). Moreover, the
materiality inquiry should be applied to the “suppressed evidence considered
collectively, not item-by-item.” Kyles, 514 U.S. at 435. For the purposes of
determining whether reversal is warranted, we assume without deciding that all
three items of evidence should have been disclosed to Bradley’s counsel. We
conclude nonetheless that the district court did not err in determining that there was
no reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.
The district court found that none of the evidence in question was material
because 1) hearsay rules would prohibit its introduction at trial, 2) the items of
evidence did not undermine the reliability of the evidence on which Bradley was
convicted, 3) Bradley’s trial counsel expressed doubts as to how helpful the
evidence might have been, and 4) the State investigated each lead and found that
none of the three suspects was involved in Rhonda’s murder.
16 Each item of evidence was in fact inadmissible at trial under Alabama Rules
of Evidence. See Johnson v. Alabama, 612 So.2d 1288, 1293 (Ala. Crim. App.
1992). Thus, in order to find that actual prejudice occurred – that our confidence
in the outcome of the trial has been undermined – we must find that the evidence in
question, although inadmissible, would have led the defense to some admissible
material exculpatory evidence. See Spaziano v. Singletary, 36 F.3d 1028, 1044
(11th Cir. 1994) (“A reasonable probability of a different result is possible only if
the suppressed information is itself admissible evidence or would have led to
admissible evidence.”). The State contends that no such evidence would have been
obtained had the prosecution disclosed these items of evidence. Their argument
was based in part on the fact that, at the post-conviction hearing on Bradley’s
Brady claims, the prosecution presented evidence that police investigation pursuant
to those leads led prosecutors to conclude that McBrayer, Sanford, and Maxwell
were not legitimate suspects in the case. Serology evidence suggested that
McBrayer could not have been the person who raped or sodomized Rhonda, and
the prosecution contended that both Sanford and Maxwell had alibis for the night
of Rhonda’s murder.
Bradley counters that, had he been aware of the evidence, he might himself
have uncovered evidence that these men were involved in the rape and/or murder
17 of Rhonda that the prosecution failed to uncover. Failing that, he might have
presented to the jury the evidence that other suspects existed and, suggesting that
the investigation into those suspects was not robust, he might have successfully
created a reasonable doubt in jurors’ minds as to his guilt.
In assessing this claim, it is important to keep in mind that Bradley need not
prove that it is more likely than not that he would have received a different verdict
with the evidence, “but whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S.
419, 434 (1995). The question is not whether there would have been sufficient
evidence to support a guilty verdict had the exculpatory evidence been included,
but rather whether the favorable evidence, taken as a whole, puts the case “in such
a different light as to undermine the confidence in the verdict.” Id. at 435. Based
on this record, we cannot say that such a lack of confidence in the verdict exists
here. Moreover, Bradley presents only speculation that he would have uncovered
any admissible evidence from these three hearsay leads. Nor can we say that, had
the jury heard evidence of the existence of these tenuous and ultimately fruitless
police suspicions, and weighed that evidence with all the evidence against Bradley,
they would have reached a different conclusion. Considering all the undisclosed
18 evidence as a whole, we are unable to say that this verdict is not worthy of
confidence.
III. Claim 3A: The conviction should be reversed because the evidence was insufficient to support a conviction that Bradley committed murder during the commission of rape or sodomy.
Bradley was convicted of murder during the commission of a rape in the first
degree and murder during the commission of sodomy in the first degree. He now
contends that there was insufficient evidence to support a jury finding beyond a
reasonable doubt that he murdered Rhonda during a rape or sodomy. Under
Alabama law, in order to find that Bradley committed murder during the
commission of a rape, the jury must have found that he committed the murder “in
the course of, or in connection with, or in immediate flight from” raping or
sodomizing Rhonda. Ala. Code § 13A-5-39 (1975).
Bradley suggests that this claim falls under the line of cases beginning with
Jackson v. Virginia, which held that a defendant is entitled to habeas relief “if it is
found upon the record evidence adduced at the trial that no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.” 443 U.S. 307, 324
(1979). In viewing the evidence in the light most favorable to the prosecution, as
we must under Jackson, id. at 319, the record reflects that:
19 • Rhonda was observed by at least three people to be watching
television in her home prior to 8:15 p.m. on the night she was
murdered.
• Around 9 p.m., Rhonda’s brother Bubba was told by Bradley
not to wake the sleeping Rhonda and not to sleep in the room
Bubba and Rhonda shared, but instead to sleep in Bradley’s
bed.
• Around 9:30 p.m., Officer Bruce Murphy saw Bradley in his
car in the area where Rhonda’s body was later discovered,
contradicting Bradley’s statement that he had not left the house
until 11:30 p.m.
• At approximately 11:30 p.m., Bradley arrived at the home of
his brother-in-law, who later testified that Bradley was upset
and “act[ing] funny.”
• When Rhonda’s body was discovered the next morning, it was
clothed in the clothing she wore the previous day. However,
her shoes were tied in single knots while several family
members testified that she always tied them in double knots,
suggesting that she had been clothed after her death.
20 • Examination of Rhonda’s body found semen in her mouth,
anus, and vagina. Semen was also found in her stomach,
suggesting that she had swallowed or been forced to swallow
semen before she was murdered.5
• Several bruises were found around her neck, and it was found
that strangulation was the cause of her death.
• Bubba testified that Bradley had frequently rendered him and
Rhonda unconscious by squeezing their necks.
• Forensic analysis of bedding and items of clothing taken from
Bradley’s home suggested that the rape and sodomy had taken
place in the home. One of the sheets was taken from the
washing machine and another from a closet.
• Fibers taken from Bradley’s trunk were generally consistent
with the clothing Rhonda was found to be wearing, suggesting
that she had been in his trunk that night.
5 This detail is significant because, under Alabama law, it is not a capital offense to rape or sodomize a person after murdering them if the rape or sodomy is “unrelated to the murder,” i.e., if the intent to commit the rape or sodomy was not formed until after the murder. If, however, the intent to commit the rape or sodomy existed at the time of the murder, the offense is a capital offense whether the rape/sodomy happened before or after the murder. See Williams v. State, 1999 WL 1128985, at *13 (Ala. Crim. App. Dec. 10, 1999); Thompson v. State, 615 So.2d 129, 133 (Ala. Crim. App. 1992).
21 • A witness at trial testified that he had heard Bradley say, “I
know deep down in my heart that I done it.”
Given this evidence, the jury could reasonably have concluded that Bradley raped
and sodomized Rhonda. They could also have concluded that he dressed her after
her death and transported her in the trunk of his car. They could also have
concluded that these events transpired between approximately 9 p.m., when Bubba
went to bed, and 9:30 p.m., when officer Murphy saw Bradley in his car, or at most
11:30 p.m., when Bradley appeared at his brother-in-law’s home. Bradley
correctly points out that the prosecution presented no testimony about the
approximate time of Rhonda’s death or about the approximate time of the sexual
activity in question. But given this relatively narrow window of time, it would not
be unreasonable for the jury to have concluded that the murder and sexual activity
all occurred during that time frame, that they were perpetrated by Bradley, and that
Bradley committed the murder “in connection” with, if not “in the course of”
raping and sodomizing Rhonda.
IV. Claim 3B: The conviction should be reversed because the evidence was insufficient to prove that the sexual activity connected to the murder was forcible.
In convicting Bradley, the jury necessarily had to conclude that the rape and
sodomy of Rhonda involved “forcible compulsion,” defined by the trial judge to
mean “physical force that overcomes earnest resistance, or a threat expressed or
22 implied that places a person in fear of immediate death or serious physical injury to
oneself or to another person.” Force was defined to mean “physical action or
threat against another” including “confinement, serious physical injury which
creates a substantial risk of death or which causes serious or protracted
disfigurement, protracted impairment of health, or protracted loss or impairment of
the function of any bodily organ.” Threat was defined to mean “a menace,
however communicated to, among other things, cause physical harm in the future
to the person threatened or to any other person.”
The district court found sufficient evidence to prove forcible compulsion
from the fact that “Rhonda had been strangled. She was four feet, ten and three-
eighths inches tall and weighed seventy-seven pounds. She had seven wounds or
bruises on her neck.” Bradley insists that, because the prosecution failed to prove a
temporal nexus between the rape/sodomy and the strangulation, a jury could not
reasonably infer from the fact of the strangulation that Rhonda was forced to
submit to oral, anal, and vaginal sex. For the same reasons that a jury reasonably
could have concluded that the rape/sodomy and murder were temporally linked, we
find that they could also have concluded that the sexual activity was forced upon
Rhonda within the meaning of the Alabama first degree rape/sodomy statute. We
note also that Alabama courts have found that “forcible compulsion” can be
23 established “by the relationship of a child victim with the defendant charged with a
sex crime involving forcible compulsion.” Rhodes v. Alabama, 651 So.2d 1122,
1123 (Ala. Crim. App. 1994) (quoting Howell v. Alabama, 636 So.2d 1260, 1261
(Ala. 1993)). Here, Bradley was twelve-year-old Rhonda’s stepfather. Based on
this record, the district court did not err in concluding that sufficient evidence
supported the jury’s finding of forcible compulsion.
V. Claims 4 & 5: The death sentence should be vacated because the evidence was insufficient to support the aggravating circumstances that 1) the murder was committed during the commission of a rape and 2) the murder was “especially heinous, atrocious or cruel.”
In Bradley’s only challenge to the imposition of the sentence of death, he
argues that neither of the aggravating circumstances applied was supported by
sufficient evidence and, therefore, their application was arbitrary and capricious in
violation of the Eighth Amendment, as explicated by the Supreme Court in Lewis
v. Jeffers, 497 U.S. 764, 782 (1990). In the sentencing phase of Bradley’s trial, the
jury was instructed that it could consider two aggravating factors should they find
beyond a reasonable doubt that those factors applied: 1) whether Rhonda’s murder
was committed “while the defendant was engaged in the commission of, or an
attempt to commit, or flight after committing, or attempting to commit rape,” and
2) whether Rhonda’s murder was “especially heinous, atrocious or cruel” in
comparison to capital murders generally. After briefly deliberating, the jury
24 returned a death sentence. At the separate sentencing hearing held thereafter, the
trial judge stated his own view that both aggravating circumstances were supported
by sufficient evidence to satisfy the “beyond a reasonable doubt” standard, and that
those aggravating circumstances far outweighed any mitigating circumstances in
the case.
Bradley’s argument with respect to the first aggravating circumstance is
identical to his argument that his conviction should not stand because there was
insufficient evidence to support a conclusion that the murder was committed
during a rape or sodomy. For the same reasons that we rejected Bradley’s
argument as to his conviction, we must likewise reject his argument as it relates to
the application of this aggravating circumstance.
With respect to the second aggravating circumstance, the jury was instructed
that the term “heinous” means extremely wicked or shockingly evil, the term
“atrocious” means outrageously wicked or violent, and the term “cruel” means
designed to inflict a high degree of pain with utter indifference to or even
enjoyment of the suffering of others. They were also informed that the degree to
which this crime is heinous, atrocious, or cruel must exceed that which exists in all
capital offenses, and that in order to find the aggravating circumstance, they must
find that the crime was “unnecessarily torturous to the victim.” As the district
25 court found, in order to be valid, an aggravating circumstance must “genuinely
narrow the class of persons eligible for the death penalty,” Zant v. Stephens, 462
U.S. 862, 877 (1983), i.e., must provide a “principled way to distinguish this case,
in which the death penalty was imposed, from the many cases in which it was not,”
Godfrey v. Georgia, 446 U.S. 420, 433 (1980).
Bradley contends that the standard “especially heinous, atrocious, or cruel”
is unconstitutionally vague, and that the definition of those words, as given to the
jury in this case, does not cure that vagueness. The Supreme Court has held that,
on their own, the words “especially heinous, atrocious, or cruel,” when used as an
aggravating factor, are so vague as to run afoul of the Eighth Amendment. See
Maynard v. Cartwright, 486 U.S. 356, 365 (1988). Thus, in order to apply that
aggravating factor in a constitutional manner, the sentencing court must give a
limiting instruction to the jury. See Lindsey v. Thigpen, 875 F.2d 1509, 1514
(11th Cir. 1989). This Court has held that a “court’s consideration of the
‘especially heinous, atrocious or cruel’ aggravating factor must satisfy a three part
test.” Id. First, the appellate courts of the state must have narrowed the meaning
of the words “by consistently limiting their application to a relatively narrow class
of cases, so that their use” informs the sentencer of what it must find before it
imposes the death penalty. Id. Bradley concedes that the Alabama courts have
26 done that, and that the sentencing court in this case advised the jury of that
narrowed construction. See Ex parte Kyzer, 399 So.2d 330, 333-35 (Ala. 1981).
Second, “the sentencing court must have made either an explicit finding that the
crime was ‘especially heinous, atrocious or cruel’ or an explicit finding that the
crime exhibited the narrowing characteristics set forth” in the state courts’
construction. Lindsey, 875 F.2d at 1514. Third, the sentencer’s conclusion as to
step two “must not have subverted the narrowing function of those words by
obscuring the boundaries of the class of cases to which they apply.” Id. Bradley
argues that the sentencing court failed to satisfy the second and third prongs of the
Lindsey test.
Bradley contends that the trial court failed the second prong of the test
because the judge failed to recount any of the facts supporting his conclusion that
Bradley’s crime was “especially heinous, atrocious or cruel” within the narrowed
meaning given in Ex parte Kyzer. Bradley relies on several cases wherein the
sentencing judge enumerated the facts supporting his or her finding that the
underlying offense warranted application of the aggravating factor. Although none
of these cases explicitly states that such an enumeration is required over and above
the “explicit finding that the crime was ‘especially heinous, atrocious or cruel’”
that is required by Lindsey, Bradley urges us to find that the trial court’s mere
27 announcement that he had made such a finding without explaining which facts
supported that finding, is insufficient to satisfy standards of constitutionality.
We need not decide this question, however, because on direct review the
Alabama Court of Criminal Appeals did recount the facts it found to support its
conclusion that the murder was “especially heinous, atrocious or cruel.” That court
stated:
This Court has no difficulty in independently determining that this capital offense was especially heinous, atrocious, or cruel compared to other capital offenses. . . . Here, Rhonda was not only raped but she was sexually abused and strangled to death. Rhonda was not an adult but a twelve-year-old child. Her assailant was her twenty-two-year- old stepfather. The especially heinous, atrocious, or cruel aggravating circumstance was warranted and fully justified in this case.
494 So.2d 750, 771. In order to uphold this sentence, we must find that this
explanation did not “subvert the narrowing function by obscuring the boundaries
of the class of cases to which” this factor should apply. Lindsey, 875 F.2d at 1514.
In other words, we must find that the Alabama court’s conclusion that this murder
was “unnecessarily torturous” to Rhonda was clearly erroneous. Given the fact
that a jury found that twelve-year-old Rhonda was forcibly subjected to anal,
vaginal, and oral sex by her stepfather, an authority figure in her life, and then
strangled, it would be difficult for us to find that the Alabama court’s conclusion
that those events were unnecessarily tortuous to Rhonda was clearly erroneous.
28 For all of the forgoing reasons, the opinion of the district court denying
Bradley’s petition for habeas corpus is AFFIRMED.