Opinion
No. 107,518.
2013-03-15
Jay Dee BREAZEALE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
Jay Dee Breazeale was convicted in 1984 of 10 felonies, including three counts of aggravated sodomy and one count of attempted rape. In 2011, he filed a habeas action under K.S.A. 60–1507 seeking a new trial based on the ineffective assistance of his prior attorneys. He contends that they should have investigated and then raised his post-traumatic-stress disorder (PTSD) from military service in Vietnam as a defense and as a mitigating factor at sentencing.
But Breazeale's latest K.S.A. 60–1507 motion is his fifth such motion, and it was filed well after the 1–year deadline for such motions. The district court can deny a second or subsequent motion unless the movant shows exceptional circumstances, and the district court can deny motions filed after the 1–year deadline absent a showing of manifest injustice. The district court found neither exceptional circumstances nor manifest injustice here, and we agree.
Breazeale had filed four K.S.A. 60–1507 motions attacking his convictions in this case before he filed the one now before us. Although he didn't mention PTSD by name in any of them, he did claim in one of the earlier cases that his attorney should have investigated his “mental condition” and should have presented a witness who could have testified about the impact his Vietnam service had on him. Thus, he not only could have raised the issue in one of his earlier K.S.A. 60–1507 motions—he actually did so. Moreover, there is no claim here that Breazeale was innocent of any of the offenses, and we are not persuaded that a presentation of information about his military service and his now-diagnosed PTSD would have had any significant impact on his case. We therefore conclude that he has not shown either exceptional circumstances or manifest injustice so as to justify reopening his case—tried to a jury in 1984—nearly 3 decades later.
Factual and Procedural Background
Breazeale's convictions arose out of four separate incidents that took place in southeast Wichita between February and October 1982. The facts are set out in the Kansas Supreme Court's 1986 decision affirming his convictions, State v. Breazeale, 238 Kan. 714, 714 P.2d 1356,cert. denied479 U.S. 846 (1986). The crimes were serious felonies, and we review the facts briefly so that the reader can consider how, if at all, PTSD might relate to them:
• In February 1982, Breazeale came to the door of a woman who was home alone with her 18–month–old daughter. After Breazeale, wearing a ski mask, knocked and said through the door that he was looking for a lost dog, the woman opened her door. Breazeale forced his way into the house while holding a gun. He ordered her to put the child in the crib and take off her clothes, and he forced her to give him oral sex while holding a gun to her head. Breazeale was convicted of aggravated sodomy, aggravated burglary, and unlawful possession of a firearm.
• In March 1982, Breazeale walked through the front door of a house that a 15–year–old junior-high-school student had failed to close behind her. Again wearing a ski mask, he made the girl undress. He first tried to have sexual intercourse with her but was unable to achieve penetration. He then forced her to perform oral sex on him while he took pictures, and he performed oral sex on her. Breazeale was convicted of two counts of aggravated sodomy, one count of aggravated burglary, one count of attempted rape, and one count of unlawful possession of a firearm.
• In October 1982, a 15–year–old boy and a 13–year–old girl who were home by themselves getting ready for school noticed a man in a ski mask walking toward their front door. They ran out a side door and hid; they later observed Breazeale running away from their house. When the children went back into the house, they discovered that several inside doors that had been closed were now open, indicating that Breazeale had gone in and looked through the house. Breazeale was convicted of aggravated burglary.
• Also in October 1982, a young woman home alone with her small daughter saw a man in a mask stare at her front window and then move toward her front door. She called police when the locked door started rattling; the man fled. Breazeale was convicted of attempted aggravated burglary.
The district court sentenced Breazeale as a repeat offender under the Habitual Criminal Act to three controlling sentences of 30 years to life in prison for the aggravated sodomy convictions, two controlling sentences of 10 to 40 years for aggravated burglary and attempted rape, and a sentence of 6 to 20 years for attempted aggravated burglary, all to run consecutively. The Kansas Supreme Court affirmed Breazeale's convictions on direct appeal in 1986. 238 Kan. 714.
After a convicted defendant's direct appeal has concluded, he or she may file an indirect challenge to the conviction and sentence through a habeas corpus action. In Kansas, these are filed as motions under K.S.A. 60–1507.
Breazeale's first K.S.A. 60–1507 motion resulted in an order from our court in 1990 overturning one of the two aggravated sodomy convictions because Kansas law at that time did not include a man performing oral sex on a woman under the legal definition of sodomy. Except for setting aside that one conviction, our court affirmed the district court's denial of relief to Breazeale. Breazeale v. State, No. 64,070 (July 20, 1990) (unpublished opinion), rev. denied September 20, 1990.
The appellate briefs in that first habeas case show two claims of relevance to the issues now before us. In the brief filed by defendant's appellate counsel, Breazeale argued that his trial attorney had been ineffective because he had failed to file a postsentence motion to modify the sentence. In a supplemental brief Breazeale filed pro se, he argued that his trial attorney had been ineffective because he failed to raise issues about Breazeale's mental condition, including how it had been impacted by his Vietnam service, at sentencing:
“Counsel failed to make an investigation into [Breazeale's] mental condition for sentencing, or present character witness[es]. In fact, counsel failed to make any remarks or statements in [Breazeale's] behalf. If investigated, counsel would have discovered Mrs. Betty Davis and Mrs. Beulah Wainscott, [Breazeale's] aunts, were available and willing to testify concerning [Breazeale's] troubled childhood. In addition, Mrs. Marilyn Brown, [Breazeale's] sister was available to testify concerning the effects ... the Vietnam War had on [Breazeale].”
Our court denied relief on the claim that Breazeale's attorney should have filed a postsentence motion to modify sentence because there was nothing in the record to show either that Breazeale asked his attorney to file such a motion to modify or that the attorney agreed to do so. Breazeale, No. 64,070, slip op. at 10. Our court denied relief on the claim that his attorney failed to provide adequate representation at trial, including the claims that he should have investigated Breazeale's mental condition and presented a witness about how Breazeale's Vietnam service had affected him, because Breazeale had not shown that his attorney's performance “fell below an objective standard of reasonableness or ... prejudiced the defense so as to deprive him of a fair trial.” Breazeale, No. 64,070, slip op. at 30.
After a convicted defendant has completed his or her direct appeal and state habeas claim, he or she can bring a federal habeas claim. Breazeale did that next; it too was unsuccessful. See Breazeale v. Maass, 1995 WL 41384 (9th Cir.1995) (unpublished opinion).
Breazeale then filed four more state habeas claims—motions under K.S.A. 60–1507—ending with the one that's now before us. He filed his second such motion in 1999. It was summarily denied; he appealed but then voluntarily dismissed his appeal. Our court affirmed the summary denial of his third K.S.A. 60–1507 motion in 2002. See Breazeale v. State, No. 87,571 (unpublished opinion filed September 6, 2002, rev. denied November 5, 2002). Our court affirmed the summary denial of his fourth K.S.A. 60–1507 motion in 2007. See Breazeale v. State, No. 95,622, 2007 WL 1413092 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 945 (2007).
Breazeale filed the current K.S.A. 60–1507 motion, his fifth, in June 2011. He claimed that both his trial counsel and his postconviction counsel had “failed to [adequately] investigate the possibility [Breazeale] suffered from post-traumatic stress disorder .” He said that his trial attorney should have “explore[d] the potential relationship between [Breazeale's] experiences in Vietnam, his stress disorder, and the charged offenses.” He also said that information about these matters should have been presented as mitigating factors in sentencing. Breazeale said that postconviction counsel should have raised the failure of his trial counsel to do these things.
The district court held a preliminary, nonevidentiary hearing in November 2011. The court denied the motion, concluding that Breazeale had brought several prior motions so this motion was successive and need not be considered, that the motion had not been brought within the 1–year time limit, and that neither exceptional circumstances nor manifest injustice had been shown,
Breazeale has appealed to this court.
Analysis
On appeal, Breazeale would need to make three showings. First, he must show that he has provided a viable basis for relief. The district court is not required to grant an evidentiary hearing if the case file conclusively shows that the movant is not entitled to relief. K.S.A. 60–1507(b); Bellamy v. State, 285 Kan. 346, 357, 172 P.3d 10 (2007). Second, because Breazeale has filed earlier K.S .A. 60–1507 motions, he has to show “exceptional circumstances” to prevent the dismissal of his motion as successive and an abuse of remedy. K.S.A. 60–1507(c); see State v. Kelly, 291 Kan. 868, 872–73, 248 P.3d 1282 (2011). Exceptional circumstances are “unusual events or intervening changes in the law that prevented the defendant from raising the issue in the preceding 60–1507 motion .” Wimbley v. State, 292 Kan. 796, Syl. ¶ 1, 275 P.3d 35 (2011). Third, motions under K.S.A. 60–1507 must be filed within 1 year of the conclusion of the defendant's original appeal. K.S.A. 60–1507(f). That 1–year time limit was put in place effective July 1, 2003; our Supreme Court has held that defendants who, like Breazeale, had been convicted before that date had 1 year from July 1, 2003, to file timely K.S.A. 60–1507 motions. See Tolen v. State, 285 Kan. 672, Syl. ¶ 4, 176 P.3d 170 (2008). Because Breazeale's current motion, filed in June 2011, was well past that deadline, the legislature has provided that it may be heard only if necessary to prevent a “manifest injustice.” K.S.A. 60–1507(f)(2). Our Supreme Court has said that a manifest injustice is one that is ‘ “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ Kelly, 291 Kan. at 873 (quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 [2007] ).
The district court held a preliminary, nonevidentiary hearing on Breazeale's motion. In such cases, we must accept any factual findings made by the district court if they are supported by substantial evidence in the record. Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). We then independently review the district court's legal conclusions, without any required deference. Thompson v. State, 293 Kan. 704, 709, 270 P.3d 1089 (2011).
With these legal standards in mind, let's consider how—if at all—PTSD might have been used to help in Breazeale's defense. Michael A. D'Anton, a psychologist and a lawyer, has provided a good overview both of what PTSD is and of how a criminal-defense lawyer might use its existence on behalf of a defendant in an appropriate case:
“PTSD is an anxiety reaction to a traumatic event. The anxiety reaction may cause a person to act as if the trauma were still occurring, which is the key to using it as a criminal defense. Defendants with PTSD may warrant an insanity or diminished capacity defense, or consideration that PTSD is a mitigating factor at the time of sentencing. The key to defending the client with evidence of PTSD in a criminal case is not to merely say he or she suffers from it.
“Counsel must explain the crime in terms of PTSD. Thus, ‘but for PTSD, the crime would not have occurred.’ This accomplishes a lot in terms of mitigation of punishment or reduction of the seriousness of the offense in rebutting evidence of malice.
“An example might be helpful at this juncture. T.W., a service-connected disabled Vietnam veteran diagnosed with PTSD, was hunting with a buddy when his shotgun accidentally discharged, hitting the friend in front of him. When the friend swung around and pointed his weapon at T.W., he went on ‘auto pilot,’ firing repeatedly to protect himself. T.W was doing what he had been trained to do in the Marine Corps, and what he had done repeatedly in Vietnam. Still experiencing the sequelae of his traumatic experiences, he reacted as if the traumatic event was still occurring. The key is that the person's response to the event must involve intense fear, helplessness, or horror. Finding that there was sufficient evidence to warrant a diminished capacity defense, the murder charge against him was not sustained.
“R.W. was the all-American boy; an altar boy, who thought of becoming a priest. In Vietnam he was ordered to execute a suspected Vietcong leader (VC). Ironically, in much the same fashion as the United States Civil War, the VC had a brother, who functioned as a “Kit Carson scout” with R.W.'s unit. The brother promised to avenge his brother's death. Back in the United States, R.W. was diagnosed with PTSD, which evolved at times into a full-blown psychosis. There were numerous hospitalizations, unfortunately characterized by inadequate treatment. One night in the throes of a psychotic episode where he thought the brother had entered his home, he shot his parents and then stabbed his father with a crucifix. The entire scenario was captured during a frantic 911 call by his mother. He was found not guilty by reason of insanity.
“ There has to be a nexus between the psychiatric condition and the resultant criminal activity. There have been suggestions that the history of PTSD warranted a defense to crimes such as credit card theft and other such crimes, but the key is that the traumatic event is reexperienced somehow leading to the alleged criminal activity, which may include illusions, hallucinations, and dissociative flashback episodes.” (Emphasis added.) Michael A. D'Anton, Avoiding Ineffective Assistance of Counsel Claims by Psychiatric Defendants, N.J. Lawyer 71, 75–76 (June 2009).
We see no way in which PTSD could have constituted a defense to the crimes Breazeale committed. He did not react to some event that caused him to relive a traumatic event he had lived through in Vietnam. Instead, he committed what appear to have been planned crimes: he conducted sufficient surveillance to pick victims, find them home alone, approach them, and attack them. Certainly, neither Breazeale nor the counsel who prepared his appellate brief in the current case have presented any persuasive rationale for how PTSD could have played a role in avoiding conviction for these offenses.
Nor do we believe that the presentation of a PTSD diagnosis would have had a significant impact upon Breazeale's sentencing, given the crimes for which he was convicted and his criminal history. The evidence heard by the jury and the sentencing judge included not only the offenses we've already discussed but also two sex offenses Breazeale had committed in Colorado in 1972. That evidence was admitted under K.S.A. 60–455 because the trial court concluded that the past crimes were sufficiently similar to the ones in Wichita that they could be used as proof that it was Breazeale who committed the Wichita crimes. Thus, the sentencing judge had also heard evidence of these crimes:
• In September 1972, Breazeale knocked on a woman's door, asked if her husband was home, and then asked if he could use her telephone. When she turned to get a telephone book that he could use, he walked in, put a gun to her head, and ordered her to undress. He then forced her to perform oral sex on him and to have sexual intercourse.
• In November 1972, a woman was home alone when Breazeale came to her door. Breazeale asked if he was at a certain person's address, and when she said he had the wrong address he asked if there was some way he could check it. She offered to get a phone book, but after she shut the door and went to get one, he came in, pointed a gun at her, and forced her to go upstairs. He then tore off her clothes and forced her to submit to sexual intercourse.
Based on these Colorado events, Breazeale pled guilty to and was convicted of two counts of rape. See People v. Breazeale, 190 Colo. 17, 544 P.2d 970 (1975). He also pled guilty to and was convicted of an even more serious deviate-sexual-intercourse-by-force offense (defined under Colorado law at that time as forcing another to submit to sexual intercourse by threat of death, serious bodily harm, extreme pain, or kidnapping) that took place in Colorado in October 1972, but evidence was not presented regarding that offense in his Wichita jury trial (apparently because it was not sufficiently similar to the Wichita crimes). Even so, the sentencing court could consider all of Breazeale's criminal history in determining his sentence for the 1982 Kansas offenses.
In sum, Breazeale had committed three serious sex crimes in Colorado in 1972. After he was released on parole by Colorado, he had committed sex crimes against two victims in Kansas in 1982, and at about the same time he entered or attempted to enter homes that another young woman and a teen were in. It's not surprising that a person with Breazeale's past record and these current crimes of conviction would receive a severe sentence. In addition, Breazeale had fled while on bond after the Kansas jury trial had concluded but before the jury returned to the courtroom to announce its sentence.
Breazeale has argued that he couldn't effectively raise this issue until he had actually been diagnosed with PTSD, which first happened in 2005. Indeed, in 1988, a federal court found Breazeale's claim that his attorney should have raised PTSD unpersuasive in a habeas action on Breazeale's conviction for aggravated failure to appear (when he failed to show up for the end of his criminal trial in Wichita). See Breazeale v. Maschner, No. 87–3314, 1988 WL 142890, at *1 (D.Kan.1988) (noting the lack of a PTSD diagnosis). But the federal court also noted that PTSD would not have been a defense to the crime, 1988 WL 142890, at *1, something that is equally true in the cases before us. Nor has Breazeale provided any convincing argument about how PTSD would have led the district court to enter a substantially lighter sentence.
We do not mean to minimize the significance of Breazeale's PTSD or of his military service to this nation. His service was significant, and the PTSD he has been diagnosed with is a significant condition. But it in no way justifies or excuses the crimes he committed, and its existence and later documentation does not meet the test for either exceptional circumstances or manifest injustice so as to merit reopening Breazeale's criminal case.
We also recognize that defense counsel in some cases should raise PTSD or other mental-health issues as potential mitigating factors at sentencing. Counsel certainly should do so in death-penalty cases, see Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 454–55, 175 L.Ed.2d 398 (2009), and in cases in which PTSD may be directly relevant, such as when an abused wife diagnosed with PTSD kills her abusive husband. See Boldridge v. State, 289 Kan. 618, 637–39, 215 P.3d 585 (2009). Neither of those situations is present here, and we must balance any inadequacy in Breazeale's defense against the need for finality in a criminal case tried in 1984. See Coleman v. State, No. 106,003, 2012 WL 3822699, at *1, 7 (Kan.App.2012) (unpublished opinion). Given Breazeale's ability to raise this issue in earlier proceedings and the lack of any meaningful theory under which PTSD in any way contributed to his commission of these crimes, the chance that any information about Breazeale's Vietnam service or PTSD would have resulted in a different sentence is so remote that further investigation of Breazeale's claim so long after his trial is not warranted. In the language of K.S.A. 60–1507 caselaw, he has shown neither extraordinary circumstances nor manifest injustice. The district court properly dismissed his motion without an evidentiary hearing.
The district court's judgment is affirmed.