State v. Breazeale, 57747
| Decision Date | 21 February 1986 |
| Docket Number | No. 57747,57747 |
| Citation | 238 Kan. 714,714 P.2d 1356 |
| Parties | STATE of Kansas, Appellee, v. Jay D. BREAZEALE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Admissibility of prior crimes under K.S.A. 60-455 is to be determined by the trial judge prior to trial and outside the presence of the jury. In ruling on the admissibility of the proffered evidence, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute; (2) determine that fact is a disputed material fact; and (3) balance the probative value of the prior crimes evidence against its tendency to prejudice the jury. In applying the foregoing rule, it is held: The trial court did not err in admitting evidence of defendant's prior sexual offenses in the State of Colorado, occurring ten years prior to the trial, as that evidence was relevant to prove identity and intent in the present and similar offenses charged.
2. The remoteness in time of a previous conviction affects the weight of the prior crimes evidence rather than its admissibility.
3. When the defendant's attack upon an affidavit supporting an arrest warrant is based on the omission of material information, the defendant must show the omission was deliberate and material. An omission is material if the original affidavit together with the omitted information would not support a finding of probable cause.
4. Joinder in the same complaint or information is proper if the crimes charged are of the same or similar character. K.S.A. 22-3202(1).
Stephen M. Joseph, of Joseph, Robison & Anderson, P.A., Wichita, argued the cause and was on brief, for appellant.
Jay D. Breazeale, pro se.
Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on briefs, for appellee.
Jay D. Breazeale (defendant-appellant) appeals from convictions by a Sedgwick County jury of three counts of aggravated burglary (K.S.A. 21-3716), one count of attempted aggravated burglary (K.S.A. 21- 3301, 21-3716), three counts of aggravated sodomy (K.S.A. 21-3506[a], one count of attempted rape (K.S.A. 21-3502 and 21-3301), and two counts of unlawful possession of a firearm (K.S.A. 21-4204). The defendant was also acquitted on charges of aggravated kidnapping, kidnapping, attempted aggravated robbery, aggravated sodomy and unlawful possession of a firearm. The charges arose from five separate incidents in southeast Wichita between February 3, 1982 and October 14, 1982. These incidents are summarized as follows:
At 8:45 a.m. on February 3, 1982, Mrs. X was home with her eighteen-month old daughter when a man she did not know knocked on her front door. The man was wearing a ski mask and a gray hooded sweat shirt. He claimed to be looking for his lost dog. When she said she had not seen the dog, he persuaded her to open her door so he could give her his phone number which he had written on a piece of paper. As soon as she opened the door, the man pulled a small handgun out of the front pocket of his sweat shirt and forced his way into her house.
The man ordered Mrs. X to put her child in the crib. He then ordered her to take off all of her clothes and to give him all of her money. She took off her jeans, shirt and socks and told the man she only had three dollars, but that he should take it and leave. The man then forced Mrs. X into her bedroom where he removed her bra and threw her onto her bed. While pointing his gun at her head, the man unzipped his jeans and forced his penis into Mrs. X's mouth. He eventually ejaculated in her mouth and she spit this out on the carpet. As soon as the man left, Mrs. X bolted her doors and then called the police.
Mrs. X attended a lineup on May 6, 1983, in which all five participants wore ski masks, gray hooded sweat shirts and blue jeans. Each man was required to say, "Do as I say and you won't get hurt." Mrs. X positively identified the defendant from his voice, his visible facial features, and his body build. Seminal fluid, removed from Mrs. X's carpet, indicated it came from a nonsecretor--that is, an individual whose body fluids do not identify an ABO blood type; nonsecretors make up 20-24% of the population. The defendant is a nonsecretor.
In connection with this incident, the defendant was convicted of aggravated sodomy, aggravated burglary, and unlawful possession of a firearm, but was acquitted on the charge of attempted aggravated robbery.
On March 26, 1982, a fifteen-year-old junior high school student, Miss Y, was home alone. At approximately 2:00 p.m., a man walked into the house through the front door which she had neglected to close all the way. He approached Miss Y while pointing a small gun at her. He was wearing a ski mask, a blue sweat shirt, blue jeans and gloves. He forced her into the bedroom and made her undress; he apparently became impatient and removed part of her clothing himself. He then attempted sexual intercourse, but was unable to achieve penetration. He next made Miss Y pose in various positions and took pictures of her with a Polaroid camera which he had kept in the front pocket of his sweat shirt. He then forced her to kneel and perform oral sex on him in front of a full-length mirror while he took more pictures. He ejaculated in her mouth and she spit this onto the floor. He then forced her to lie on the bed where he covered her face with a pillow and performed oral sex upon her. Before he left, he threatened to spread the photographs all around her school if she told anyone what had happened. After the man left, Miss Y ran to her school for help.
Miss Y attended the May 6, 1983, lineup which Mrs. X also attended. Miss Y positively identified the defendant based on his voice, body weight and build, and his mustache, which was visible through the ski mask.
In connection with this incident, the defendant was convicted of aggravated burglary, two counts of aggravated sodomy, attempted rape and unlawful possession of a firearm.
On October 4, 1982, at 7:20 a.m., fifteen-year-old Douglas Drydale and his thirteen-year-old sister, Amy, were home alone getting ready for school. Douglas looked out a side door in the house and noticed a man, who was wearing a ski mask and a stocking cap, walking down the street and staring at the Drydale house. A few minutes later, Douglas noticed the man had opened their front screen door and was attempting to open the inside door. Douglas and his sister ran from the side door of the house and hid in some bushes in a neighbor's yard. A few minutes later, Douglas saw the man running away from his house. Douglas returned to his house. He discovered that nothing was missing, but doors were open which had previously been closed.
A neighbor drove Douglas around the block in an attempt to catch the man, but they did not find him. Douglas then called his mother who called the police.
At the same time that Douglas and Amy Drydale were hiding in the bushes, a friend of theirs--Jeanette Arthurs--was walking down the street toward the Drydale house on her way to school. She observed a man who was wearing a stocking cap running up the street from the general direction of the Drydale residence. He seemed to be concealing his face from her; she saw him get into a brown 1979 or 1980 Camaro or Trans Am and drive away. Because she thought his behavior was unusual, she copied down his license plate number onto a piece of paper which she gave to Douglas Drydale who gave it to the police. It was later learned that the license number which Jeanette copied was registered to the defendant's 1979 brown Camaro. When questioned by police, both Douglas and Jeanette said they thought the man might have been black.
The police went to the defendant's residence at 8:00 a.m. that morning. His car was in the driveway and they noticed the hood was still warm. The defendant answered the door and advised the police that he had been home all morning.
The defendant was convicted of aggravated burglary in connection with this incident.
At approximately 1:00 p.m. on October 14, 1982, a man wearing a gray jogging suit parked his sporty, brown, two-door car in the rear parking lot of a church and walked down an alley. This was observed by Joan Todd, a secretary in the church, when she happened to look out a window. As she thought the man's behavior seemed unusual, she told Pat Anderson, who also worked in the church, what she had seen.
At about this same time, a woman who lived down the block from the church observed a man in a gray jogging suit cut across Charlotte Carrillo's yard toward Mrs. Carrillo's front door. A few minutes later, she observed the man returning in the same direction he had come.
Mrs. Carrillo was home alone with her small daughter and saw the man as he approached her house. His face was hidden by a mask or Halloween-like makeup. He stared at her window for awhile and then moved towards her door. As she heard the locked door rattling, she called the police. The man fled while she was on the phone.
Following this, Pat Anderson looked out the church window and saw a man in a gray sweat shirt running down the alley toward the back of the church. Believing him to be the same man Joan Todd had told her about, she looked at him carefully. She was later able to pick the defendant's picture from a photographic lineup.
At 1:15 p.m., a Wichita police officer who was on patrol in the vicinity of the Carrillo home responded to the dispatcher's call to go to that residence. When he was within a mile of her home, he observed the defendant in his brown Camaro coming from that direction. The police officer turned and followed the defendant and then pulled him over. The officer observed a gray sweat shirt inside the...
To continue reading
Request your trial
-
State v. Herzog
...Randolph v. State, 361 N.E.2d 900, 901 (Ind.1977); State v. Nunn, 244 Kan. 207, 212, 768 P.2d 268, 274 (1989); State v. Breazeale, 238 Kan. 714, 720-22, 714 P.2d 1356, 1361-62, cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 (1986); State v. Churchill, 231 Kan. 408, 414, 646 P.2d ......
-
State v. Moeller
...involved "what appeared to be a square-barrelled pistol and a sawed-off shotgun concealed by a paper bag." Id. See State v. Breazeale, 238 Kan. 714, 714 P.2d 1356, 1358 (1986), cert. denied, 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 (1986), (same result involving the use by the defendant ......
-
State v. Nunn
...(3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury. State v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356, cert. denied 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 The State filed a motion to allow testimony of L.H. and N.H. ......
-
State v. Hall
...and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury." State v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356, cert. denied 479 U.S. 846, 107 S.Ct. 164, 93 L.Ed.2d 102 In Breazeale, the defendant had been convicted of similar crimes i......