Betts v. McKune

• Court: U.S. District Court — District of Kansas
• Writing for the Court: Sam A. Crow
• Decision Date: 02 July 2013
• Docket Number: No. 11-3097-SAC,11-3097-SAC
• Citation: Betts v. McKune, No. 11-3097-SAC (D. Kan. Jul 02, 2013)
• Parties: BRIAN E. BETTS, Petitioner, v. DAVID MCKUNE, et al., Respondents.

BRIAN E. BETTS, Petitioner, v. DAVID MCKUNE, et al., Respondents.

No. 11-3097-SAC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

Dated: July 2, 2013

MEMORANDUM AND ORDER

This matter comes before the court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Dk. 1). The petitioner, Brian Betts, is incarcerated in Lansing Correctional Facility serving a life sentence on a premeditated first-degree murder conviction. Betts summarily addresses numerous grounds for relief in his initial petition. The court will group the different issues and arguments as follows: (1) Denial of due process from not being granted a new trial following Carter Betts's recantation after trial; (2) Denial of due process and prosecutorial misconduct in the presentation and failure to correct the false testimony of Officer Thompson, Jimmy Spencer and Carter Betts; (3) Denial of due process and violation of Confrontation Clause in admitting Carter's testimony on Celester McKinney's statement pursuant to the adoptive admissions exception; (4) Prosecutorial Misconduct due to improper closing argument; (5) Denial of due process in the trial court's failureto grant a continuance to investigate exculpatory evidence; (6) Denial of right to be present on five of eight times that the trial court answered the jury's questions during deliberation; (7) Ineffective assistance of trial counsel, Mark Sachse; (8) Constitutional error in overruling Batson objection; (9) Ineffective assistance of appellate counsel;(10) Error in withholding exculpatory evidence of Spencer's conviction and incarceration when testifying at trial; and (11) Cumulative trial error.

In response to the court's show cause order (Dk. 2), the respondents filed their answer and return (Dk. 15) and forwarded for the court's review the relevant state court records (Dk. 16). Counsel then entered an appearance on behalf of petitioner and filed the reply and traverse. (Dks. 27 and 28).

PROCEDURAL HISTORY

Following a jury trial in the District Court of Wyandotte County, the petitioner, Brian Betts, was convicted of the first-degree premeditated murder of Greg Miller. Betts filed two pro se post-trial motions that included allegations of ineffective assistance of trial counsel who was then allowed to withdraw. Betts retained counsel to represent him on these motions and a motion for judgment of acquittal. The trial court held evidentiary hearings before denying the motions and then sentencing the defendant to life imprisonment.

On direct appeal to the Kansas Supreme Court, petitioner raised numerous arguments including multiple claims of constitutional violations. His conviction was affirmed. State v. Betts, 272 Kan. 369, 33 P.3d 575 (2001). On August 19, 2002, the petitioner filed pro se a motion for relief under K.S.A. 60-1507 in Wyandotte County District Court. Counsel was appointed and an amended petition was filed with a supporting memorandum of law. The State moved to dismiss arguing that the issues were raised or should have been raised in the direct appeal. The district court, with the parties' agreement, articulated the "eight issues collectively raised in Betts' motions." Betts v. State, 225 P.3d 1211, 2010 WL 919795 at *1 (Kan. App. 2010). The district court then dismissed all issues but ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The district court later denied the claims of ineffective assistance of trial counsel as either raised and denied on direct appeal or should have been raised on direct appeal. The district court addressed the merits of the ineffective assistance of appellate counsel claim and denied relief. The Kansas Court of Appeals affirmed the district court's denial of § 1507 relief. Id. The Kansas Supreme Court denied review. Petitioner then filed this pending petition for habeas corpus relief pursuant to 28 U.S.C. § 2254.

FACTS

The court is to presume the state court's factual determinations are correct, unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The petitioner has not carried that burden nor proffered any evidence in support of that burden. Thus, the court adopts the following facts as taken from the Kansas Supreme Court's opinion affirming his conviction:

Brian Betts, Celester McKinney, and Celester's brother, Dwayne McKinney, were all charged with the first-degree premeditated murder of Greg Miller. Based upon a pretrial motion to sever, the defendant and the McKinney brothers were granted separate trials. Defendant Betts was found guilty, and we deal with his appeal in this case. Celester McKinney was also found guilty, and on appeal his conviction was affirmed by this court in State v. McKinney, 33 P.3d 234 (Kan. 2001) filed this date. Dwayne McKinney was found not guilty.

The major players involved in this appeal are Brian Betts and Celester and Dwayne McKinney. The main witness for the prosecution was Carter Betts, who is the uncle of the three codefendants. Jimmy Spencer, Jr., uncle of the victim, also testified on the part of the State. Other witnesses who testified at trial are identified below.

In the early morning hours of December 29, 1997, police in Kansas City, Kansas, responded to a report of shots fired and found Greg Miller's body. Greg had been shot 18 times with both a shotgun and a rifle. A trail of blood ran to the body. Spent 12-gauge shotgun shells and empty rifle shell casings were found near the body.

Alfred Burdette, Jr., the person who reported the shots, testified he heard the gunshots at approximately 3 a.m. He looked outside and saw a person walking and firing a gun. Another person on the other side of the street was also firing. At first, Burdette thought the persons were shooting at each other, but then he noticed they both ran off together in the same direction. Burdette testified at trial that he saw one of the shooters enter the rear gate at 2917 N. 5th. The person went to the door, hesitated, and then went in. Officer Keto Thompson was one of the responding officers. Officer Thompson testified that he talked to Burdette. According to Officer Thompson, Burdette said the person wentbetween the houses, but Burdette did not know whether the person had actually entered the house in question.

Brian Betts resided at 2119 N. 5th with his uncle, Carter Betts. The defendant lived in an apartment at the residence with a separate entrance, while Carter, Celester McKinney, and Dwayne McKinney lived in the main part of the house.

Carter provided the testimony linking the defendant to the crime. Celester and Dwayne were cleaning a building on the night in question and returned home between 11:30 p.m. and midnight. Carter went to sleep but was awakened at approximately 3 a.m. by gunshots. He testified he then heard the front door open and close. He went downstairs to investigate and found the defendant, Dwayne, and Celester. A pistol grip shotgun and an assault rifle lay at the feet of Dwayne and the defendant.

According to Carter, he asked what happened and Celester replied that they "shot that Greg cat." Carter stated that Celester did most of the explaining, although the defendant and Dwayne also interjected comments. Celester explained to Carter that they suspected Greg, the victim, broke into and burglarized the defendant's apartment. Celester stated the defendant and Dwayne were looking for Greg but could not find him, so Celester went to his house to urge him to come out. When Greg denied having broken into the defendant's apartment, Dwayne raised a gun to shoot him. However, the gun jammed and Greg began to run away. Celester told Dwayne and the defendant to stop him because they could not let him live to be a witness. Dwayne and the defendant began firing and their shots knocked Greg down. Celester told Carter that the defendant then went over and finished Greg off. According to Carter, the defendant also confirmed that he stood over Greg and shot him. Carter testified the defendant later told him they had gotten rid of the guns.

Carter testified that when the police questioned him regarding the incident, he told them his nephews had been in bed asleep at the time the shots were fired. Later, however, the police questioned him at the station and he changed his story. Carter stated that his family was split over his testifying against his nephews. Near the end of the testimony, he began to cry. Under cross-examination, Carter testified that he and the defendant had a disagreement because the defendant thought Celester had broken into his apartment and Carter was protecting Celester by telling the defendant that Celester was with him when the break-in occurred. However, according to Carter, the defendant and he had resolved their differences by the time of the shooting.

Jimmy Spencer, Jr., Greg Miller's uncle, also provided information linking the defendant to the crime. Spencer stated that he woke up around 3 a.m. in order to get something to eat, and found that the soda pop that he had put in the refrigerator was gone. He woke Greg, who was living with him, and asked him if he had taken the soda pop. Greg confirmed that he had. Spencer sent Greg out to buy a soda pop from a nearby machine. When Greg returned, he told Spencer that a person named Les wanted to talk to him. Spencer testified he thought Greg was referring to the defendant as Les. Greg left to find out what Les wanted. Spencer stated he heard gunshots a few minutes later. He looked out the window and saw someone shooting toward the ground. Spencer dressed and went to investigate whereupon he found Greg's body. Soon after, the police arrived.

The other evidence linking the Betts' household to the crime came from a member of Greg's family who told police that a person named Les was involved.

The defendant presented an alibi defense. He testified he was asleep in bed with his fiancee and baby son when he heard the shots. The defendant stated he

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