DAVID E. BREEZEE
STATE OF TENNESSEE
Session December 6, 2016
from the Circuit Court for Benton County No. 10-CR-45 C.
Creed McGinley, Judge
Petitioner, David E. Breezee, appeals the Benton County
Circuit Court's denial of his petition for
post-conviction relief from his convictions of rape of a
child, rape, and two counts of incest and resulting effective
thirty-four-year sentence. On appeal, he contends that he
received the ineffective assistance of trial counsel, that
the post-conviction court erred by denying his petition for a
writ of error coram nobis, and that he is entitled to a
second post-conviction evidentiary hearing due to
post-conviction counsel's deficient performance. Based
upon the oral arguments, the record, and the parties'
briefs, we affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
R. Chism, Memphis, Tennessee, for the appellant, David Eugene
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Matthew F.
Stowe, District Attorney General; and Bruce I. Griffey,
Assistant District Attorney General, for the appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
MCGEE OGLE, JUDGE.
2010, the Benton County Grand Jury indicted the Petitioner
for rape of a child, a Class A felony, in count one; rape, a
Class B felony, in count three; and incest, a Class C felony,
in counts two and four. The charges alleged two different
victims, B.W. and D.W., who were the Petitioner's
stepdaughters. The trial court severed the offenses in counts
one and two involving D.W. from the offenses in counts three
and four involving B.W. The Petitioner was tried for counts
three and four in April 2011 and counts one and two in August
first trial, B.W. testified that on February 24, 2010, the
Petitioner "came into her bedroom, pinned her against
the wall, and put his hand down her pants and that he
'play[ed]' with her vagina, 'sticking his fingers
inside [her].'" State v. David Eugene
Breezee, No. W2011-01231-CCA-R3-CD, 2012 WL 6728345, at
*4 (Tenn. Crim. App. at Jackson, Dec. 28, 2012), perm. to
appeal denied, (Tenn. May 14, 2013). D.W. and D.W.'s
boyfriend testified that when D.W. opened the bedroom door,
they saw B.W. pinned against the wall and the
Petitioner's hand down her pants. Id. at *3-4. A
jury convicted the Petitioner of rape and incest of B.W. as
charged. After a sentencing hearing, the trial court merged
the incest conviction into the rape conviction and sentenced
the Petitioner to ten years in confinement. See id.
second trial, D.W. testified that one night in 2007, when she
was twelve years old, she awoke with her shorts and
undergarment on the floor and the Petitioner's tongue in
her vagina. See State v. David Eugene Breezee, No.
W2011-02186-CCA-R3-CD, 2012 WL 6717308, at *3 (Tenn. Crim.
App. at Jackson, Dec. 26, 2012), perm. to appeal
denied, (Tenn. May 14, 2013). She tried to push him
away, but he held her so she could not move and told her to
"shh." Id. The Petitioner stopped when her
mother walked into the room. Id. On
cross-examination, D.W. testified that the Petitioner would
beat her every night while her mother was at work and that
the beatings continued for three to four years. Id.
at *4. The mother of the victims testified that she walked in
on the Petitioner's performing oral sex on D.W.
Id. at *3. A second jury convicted the Petitioner of
rape of a child and incest as charged. Id. at *4.
After a sentencing hearing, the trial court merged the incest
conviction into the rape of a child conviction and sentenced
him to twenty-five years in confinement. See id. The
trial court ordered that the Petitioner serve the
twenty-five-year sentence consecutively to the ten-year
sentence for a total effective sentence of thirty-five years.
Petitioner appealed his convictions and sentences. This court
affirmed his conviction and sentence for rape of a child in
count one, reinstated his incest conviction in count two, and
remanded the case to the trial court for resentencing as to
both counts. Id. at *1. Two days later, this court
affirmed his conviction and sentence for rape in count three,
reinstated his incest conviction in count four, and remanded
the case for resentencing on count four. See David Eugene
Breezee, No. W2011-01231-CCA-R3-CD, 2012 WL 6728345, at
remand, the trial court sentenced the Petitioner to
twenty-two years for rape of a child and five years for each
incest conviction. State v. David Eugene Breezee,
No. W2013-00798-CCA-R3-CD, 2013 WL 5745677, at *2 (Tenn.
Crim. App. at Jackson, Oct. 21, 2013), perm. to appeal
denied, (Tenn. Mar. 4, 2014). The court ordered that the
Petitioner serve the twenty-two-year sentence consecutively
to the previously imposed ten-year sentence for rape and that
he serve the two five-year sentences concurrently with each
other and the other sentences for a total effective sentence
of thirty-two years. Id. This court affirmed the
Petitioner's sentences. Id. at *4.
17, 2014, the Petitioner filed a pro se petition for
post-conviction relief, alleging that he received the
ineffective assistance of counsel because trial counsel
failed to argue that the State did not prove beyond a
reasonable doubt that the offenses were committed prior to
the return of the indictment; failed to interview and call
exculpatory witnesses, including his parents, to testify at
trial; failed to object to and request a limiting instruction
regarding testimony about prior bad acts; failed to object to
the State's knowing use of perjured testimony; and failed
to reveal to the jury that B.W. had received monetary
consideration for her testimony against the
Petitioner. On September 3, 2014, the Petitioner filed
a second pro se petition in which he alleged "newly
discovered evidence" in the form of two letters that
showed D.W. and her mother had a motive to fabricate sexual
abuse allegations against him. The second petition also
raised additional claims of ineffective assistance of
counsel, including that trial counsel failed to call Ronnie
Quillen to testify that he slept on the Petitioner's
couch in February 2007 and that no sexual misconduct
occurred, failed to object to testimony about "sexual
abuse syndrome, " and failed to request jury
instructions on all lesser-included offenses.
post-conviction court appointed counsel, and counsel filed an
amended petition, maintaining that counsel was ineffective
for failing to argue that the State did not prove the
offenses were committed prior to the return of the
indictment; failing to interview and call exculpatory
witnesses, including the Petitioner's parents; failing to
object to and request a limiting instruction on prior bad
acts; failing to object to the State's knowing use of
perjured testimony; and failing to reveal to the jury that
B.W. was promised money from the Victim's Compensation
Fund in exchange for her testimony. ...