Breard v. Netherland

• Decision Date: 27 November 1996
• Docket Number: Civil Action No. 3:96CV366.
• Parties: Angel BREARD, Petitioner, v. J.D. NETHERLAND, Warden, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

949 F.Supp. 1255

Angel BREARD, Petitioner, v. J.D. NETHERLAND, Warden, Respondent.

Civil Action No. 3:96CV366.

United States District Court, E.D. Virginia, Richmond Division.

November 27, 1996.

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Michele J. Brace, Mark Evan Olive, Virginia Capital Representation Resource Center, Richmond, VA and Jill Misage, Franklin Brawner Greer, William G. Broaddus, Alexander H. Slaughter, Dorothy Campbell Young, McGuire, Woods, Battle & Boothe, Richmond, VA, for petitioner.

Donald Richard Curry, Office of the Attorney General, Richmond, VA, for respondent.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on respondent's motion to dismiss the petition for a writ of habeas corpus. For the reasons set forth below, the Court GRANTS the motion.

I. Background

Mr. Breard was convicted of the rape and stabbing death of thirty-nine year old Ruth Dickie. The Virginia Supreme Court, affirming Breard's conviction and sentence on direct appeal, stated the facts of the case as follows:

In February 1992, the victim, Ruth Dickie, resided alone at 4410 North Fourth Road, Apartment 3, in Arlington County. She was 39 years of age and unmarried. Breard was living in an apartment a short distance from Dickie's apartment.

About 10:00 or 10:15 p.m. on February 17, 1992, Dickie left an Arlington restaurant. About 10:30 or 10:45 p.m., Ann Isch, who lived in an apartment directly below Dickie's, heard Dickie and a man arguing loudly in the hall. Isch heard Dickie say, "[K]eep your hands off me." According to Isch, the arguing continued as she heard Dickie and the man enter Dickie's apartment. Almost immediately thereafter, when everything became quiet, Isch called the apartment complex maintenance man.

Upon receiving a call, the maintenance man, Joseph King, went to Dickie's apartment. King knocked on the apartment door and heard "something that sounded like something being drug across the floor." After receiving no response in his knocking, King called the police.

When the police arrived, King gave them a master key. Upon entering the apartment, the police found Dickie lying on the floor. She was on her back, naked from the waist down, and her legs were spread wide. She was bleeding profusely and did not appear to be breathing.

The police observed a "shiny ... dried ... body fluid" on Dickie's pubic hair and on her inner thigh. Hairs were found clutched in her bloodstained hands and on her left leg. Dickie's underpants had been torn from her body. The police found Dickie's eyeglasses, without one lens, in the living room, and the missing lens was found under her body. A telephone receiver located near her head was covered with blood. In the room where Dickie's body was found, the police also found her shoes and her pants with some buttons missing. Dickie's purse was on the floor just inside the front door, and her set of keys was on the floor between her legs.

An autopsy revealed that Dickie had sustained five stab wounds to the neck. Two of the wounds would have caused her death.

The body fluid found on Dickie's pubic hair and inner thigh was subjected to a serological examination and identified as semen. No semen was detected on vaginal or anal swabs.

In the course of their investigation, the police obtained a sample of Breard's blood and samples of his head and pubic hair. The hair samples were subjected to microscopic examination, and the blood sample was subjected to enzyme testing and DNA analysis.

The foreign hairs found on Dickie's body were determined to be identical in all microscopic characteristics to the hair samples taken from Breard. The hairs found clutched in Dickie's hand were Caucasian hairs "microscopically like" Dickie's own head hair and bore evidence that they had been pulled from her head by the roots.

The semen found on Dickie's pubic hair matched Breard's enzyme typing in all respects. On all five of the genetic probes used in the DNA testing, Breard's DNA profile matched the DNA profile of the semen found on Dickie's body.

Breard is a native of Argentina, and his DNA profile occurs in only one in seventeen million members of the Hispanic population. Only 1.7% of the general population has Breard's enzyme typing.

At trial, Breard testified in his own defense. He stated that, on the night of February 17, 1992, he left his apartment armed with a knife because he thought he would "try to do someone," meaning that he "wanted to use the knife to force a woman to have sex with [him]." Breard admitted that he engaged Dickie in conversation on the street, followed her to her apartment, argued with her, and forced himself into her apartment. Breard also admitted that he stabbed Dickie, removed her pants, and got "on top of her." While he was on Dickie, he heard someone knocking on the door. He "got scared," opened a kitchen window, jumped to the ground and fled. Breard also testified that, at the time, he believed that he was under a curse placed upon him by his ex-wife's father.

Breard v. Commonwealth, 248 Va. 68, 72-73, 445 S.E.2d 670, 673-74 (1994).

II. Procedural History

Petitioner was indicted for attempted rape and for the capital offense of murder in the commission of, or subsequent to, rape or attempted rape. After a jury trial, he was found guilty on June 24, 1993. The jury sentenced Mr. Breard to ten years and a $100,000 fine for the rape and sentenced him to death for the capital murder. On August 22, 1993, the trial court conducted a sentencing hearing and entered an order reflecting the jury's verdict. Petitioner's execution date was set for February 17, 1994. The execution was stayed pending appeals.

The Supreme Court of Virginia affirmed the judgment on June 10, 1994. Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994). On October 31, 1994, the United States Supreme Court denied Breard's petition for a writ of certiorari. Breard v. Virginia, ___ U.S. ___, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994).

The Circuit Court of Arlington County denied Breard's state habeas petition on June 29, 1995. The Supreme Court of Virginia refused his petition for appeal on January 17, 1996, and denied his petition for rehearing on March 1, 1996.

On April 25, 1996, Petitioner filed a motion in this Court for appointment of counsel and stay of execution. The Court granted the motion and directed Breard to file his petition by July 1, 1996.

III. Claims Presented

Petitioner attacks his conviction and sentence on the following grounds:¹

I. Authorities of the Commonwealth of Virginia violated Petitioner's rights under the Vienna Convention.

II. Petitioner was incompetent to stand trial because his fanatical religious beliefs and incomprehension of the American justice system made him incapable of assisting in his own defense.

III. Virginia permits the death penalty to be arbitrarily imposed and it was arbitrarily imposed in this case.

A. The Commonwealth arbitrarily sought the death penalty.

B. The Commonwealth arbitrarily imposes the death penalty in capital rape-murder cases.

C. Imposition of the death penalty on Petitioner is not proportional to the penalty in other capital rape-murder cases.

IV. The Supreme Court of Virginia's statutorily required review denied Petitioner due process and was constitutionally inadequate to prevent Virginia's arbitrary imposition of the death penalty on Petitioner.

V. Application of Virginia's statutory aggravators results in capricious and arbitrary imposition of the death penalty.

A. Virginia's "vileness" factor is unconstitutionally vague and fails to permit the jury to distinguish meaningfully and rationally the few for whom death may be an appropriate sentence from the many for whom it is not, in violation of the Due Process Clause of the Fourteenth Amendment and the prohibition against cruel and unusual punishment under the Eighth Amendment.

B. The future dangerousness aggravator was unconstitutionally applied here because the statutory language is confusing and because the jury was permitted to utilize evidence of unadjudicated acts of misconduct to sentence Petitioner to death without any requirement or instruction that it could not utilize such acts unless the jury found that such acts were established by some standard of proof such as proof beyond a reasonable doubt.

VI. The trial court improperly refused to strike a prospective juror in violation of the right to an impartial jury.

VII. The court improperly allowed the prosecutor to ask expert witnesses if they had been retained by defense counsel and to state in closing argument that experts had been hired by defense counsel.

VIII. The Petitioner was denied reasonably effective assistance of counsel.

A. Counsel failed to raise the issue of the Vienna Convention and state habeas counsel failed to raise it in the state habeas corpus petition.

B. Counsel failed to have Petitioner evaluated as to competency at the time of trial, and state habeas counsel failed to raise this issue in the state habeas corpus petition.

C. Counsel failed to perform an adequate mitigation investigation.

D. Counsel improperly gave the prosecutor notice of use of expert testimony on Petitioner's insanity.

E. Counsel failed to timely request a mistrial based on the prejudicial testimony of Florence Dickie.

IX. The sentence of death was imposed under the influence of passion, prejudice or other arbitrary factors and/or was excessive or disproportionate to the penalty imposed in similar cases.

X. The cumulative prejudice suffered by Breard because of the multiple violations of his rights requires reversal of his conviction and/or death sentence.²

IV. Standard of Review

Before addressing Petitioner's claims, the Court must consider the applicability of the Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214. This Act, which became effective on April 24, 1996, makes significant changes to...