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Breezee v. State

Court of Criminal Appeals of Tennessee, Jackson

May 9, 2017

DAVID E. BREEZEE
v.
STATE OF TENNESSEE

          Session December 6, 2016

         Appeal from the Circuit Court for Benton County No. 10-CR-45 C. Creed McGinley, Judge

         The 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.

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

          Lance R. Chism, Memphis, Tennessee, for the appellant, David Eugene Breezee.

          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 of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         In June 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 2011.

         At the 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. at *1.

         At the 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. See id.

         The 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 *1.

         On 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.

         On July 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.[1] 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.

         The 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. ...


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