State v. Breedlove
| Decision Date | 14 September 2012 |
| Docket Number | No. 103,350.,103,350. |
| Citation | 295 Kan. 481,286 P.3d 1123 |
| Parties | STATE of Kansas, Appellee, v. Terral BREEDLOVE, Appellant. |
| Court | Kansas Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. When this court reverses and vacates a juvenile adjudication and the case is subsequently certified for adult prosecution, the speedy trial statute, K.S.A. 22–3402 (Furse), does not apply until the time of arraignment.
2. The time limitations set out in K.S.A. 22–3402(4) (Furse) do not apply to a juvenile defendant.
3. The appellant has the burden of preserving and designating a record that supports an appellant's claim that the speedy trial statute was or was not violated.
4. The method employed in presenting admissible evidence, including a reading of testimony from a prior hearing that was subject to cross-examination, is reviewed for abuse of judicial discretion.
5. Vacating a judgment does not undo history and make it so that the proceeding never occurred or was defective in every respect.
6. An order resulting from a motion in limine is a temporary protective order that is subject to change during the trial.
Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
After this court reversed for lack of jurisdiction Terral Breedlove's convictions for murder, robbery, and assault, he was convicted of first-degree murder in a new trial, and he now appeals. We find no reversible error in the prosecution of the new trial, and we affirm the conviction.
In order to address the issues presented in the present appeal, it is necessary to review why the first group of convictions were vacated and what evidence was presented at the second trial.
On August 12, 1995, when Breedlove was 17 years old, the murder for which he has been twice convicted took place. Then, on September 3, 1995, he committed additional crimes, all stemming from a carjacking and subsequent police chase. The juvenile court authorized prosecuting him as an adult for the September 3 crimes, and Breedlove eventually entered a guilty plea to those charges. Later, when he was 19 years old, the State charged him with crimes alleged to have occurred on August 12: felony murder, aggravated robbery, and four counts of aggravated assault. He was arraigned and tried in district court without the State receiving judicial authorization to prosecute him as an adult. A jury convicted him of those crimes in 1997, and the district court sentenced him to life imprisonment plus 52 months, to be served consecutive to the sentences for the crimes disposed of in the plea. In 1999, this court affirmed the convictions and sentences for the August 12 crimes in State v. Breedlove, No. 80,952, 1999 WL 509667 (Kan.1999) (unpublished opinion).
In 2006, Breedlove filed a motion to correct an illegal sentence, alleging that the district court lacked jurisdiction over his prosecution as an adult because he was not initially charged in juvenile court and the State never obtained authorization to prosecute him as an adult.
This court agreed, holding that the convictions were void, and reversed those convictions and vacated the sentences in State v. Breedlove, 285 Kan. 1006, 179 P.3d 1115 (2008). The mandate issued on April 21, 2008.
On April 30, 2008, the State filed new case number 08JV0623 in juvenile court, charging Breedlove with the six counts for which he had earlier been convicted. On May 5, 2008, the State filed a motion requesting authorization for adult prosecution. On November 10, 2008, Breedlove filed a motion to dismiss the nonmurder counts based on the expiration of the statute of limitations. The motion was heard on November 18, 2008. On February 19, 2009, the Sedgwick County Juvenile Department filed a journal entry authorizing prosecution of Breedlove as an adult. On the same date, the district court filed a journal entry arraigning Breedlove on one count of first-degree murder. On February 23, 2009, the juvenile court granted the motion to dismiss the five nonmurder counts.
Prior to his trial in district court, Breedlove filed a motion to dismiss based on speedy trial grounds. This motion was denied, and a jury trial took place on June 23–25, 2009. At the second trial, the jury heard the testimony of witnesses relating to events of August 12 and September 3, 1995.
Callie Bishop testified that she was a young teenager in 1995, and that on the night of August 12, 1995, Breedlove approached her and some friends in the driveway of a friend's house in Wichita while a Hispanic man waited at the end of the driveway. Breedlove pointed a gun at Bishop, asked the teenagers if any of them owned a car, and then walked away when they explained that they were too young to drive. Danielle Hardman and Kevin Hammond corroborated Bishop's account.
Shelly Hernandez testified that she was sitting outside her apartment in Wichita on that same night when Breedlove and a Hispanic man approached them through the parking lot. Breedlove was holding a gun, and he asked them if they had seen his car. The men left when she told them she had not.
Dawn Landsdowne worked at a Checkers grocery store in Wichita. She testified that Rigoberto Garcia returned to the store on the night of August 12 to get a refund for merchandise. She observed Breedlove and another young man hanging out around the front of the store asking people if they could get a ride. The two men asked Garcia if they could get a ride with him, and they left the store shortly after Garcia left with his refund. The testimony of Craig Wilson from the first trial was read to the jury. He was a night manager at Checkers, and he corroborated Landsdowne's testimony.
Sergeant William Stevens of the Wichita Police Department testified that he responded to a call at 11:43 in the evening and found Garcia lying on his back by some trash dumpsters in a corner of the Checkers parking lot. Garcia was still breathing at the time, but he was not conscious. Garcia never regained consciousness, and he died around 12:45 on the afternoon of August 14. At the hospital it was determined that a bullet was lodged in Garcia's head. The testimony of Dr. Marcus Nashelsky from the first trial was read to the jury. He testified that the wound was consistent with a close-range gunshot from the back left side of the head toward the front right side. He concluded that the bullet was the cause of Garcia's death.
The testimony of Andrea Carlyle from the first trial was read to the jury. She was dating Breedlove in August 1995. When she got home from work at 5:30 on the evening of August 12, Breedlove and Israel Sosa were waiting for her. They told her they were going to get something to eat and left around 6 p.m. They did not have a car and left on foot. Breedlove returned alone to her house around 2 in the morning of August 13. He told her that Sosa and he had eaten and then gone to Checkers, where they found an old man who had been shot and whose keys were lying on the ground beside him. They picked up the keys and took his car because they needed a ride home. Breedlove then told her he had shot the man, but soon afterwards told her that “he was just kidding.”
Sosa testified that he and Breedlove went walking after they ate dinner on August 12. He told the jury that Breedlove was carrying a gun and that the two of them approached some children in a driveway and some people outside an apartment. They then went to Checkers, where Sosa bought a drink. They were walking away from Checkers behind the store when Sosa watched Breedlove shoot someone. Breedlove and the victim were “wrestling” over the gun when the gun went off. Breedlove then got into the victim's car, drove over and picked up Sosa, and took him home. Sosa and his family took a vacation out of town soon afterwards; when they returned, Sosa met up with Breedlove, and the two once again set out to find a car. Sosa initially testified that they traded some crack cocaine for a car, and the police chased them down. Responding to a transcript of his previous testimony, Sosa acknowledged that he and Breedlove had carjacked the car and that Sosa was driving when the police pursued them while Breedlove fired a shotgun out the rear window.
Alvin Mitchell testified that on September 3, 1995, he was driving in Wichita when he thought he heard two young men standing near the street ask him to stop. He initially thought it was one of his nephews. When he stopped, Breedlove approached Mitchell's car and held a gun to his head; he demanded that Mitchell give him his car, his billfold, and his shoes. With Breedlove at the wheel, he and Sosa drove off in the car, leaving Mitchell by the side of the street.
Deputy Brenda Dietzman testified that she identified and pursued Mitchell's stolen car that night, and during the pursuit two shots from a shotgun were fired at her from the car. She and other officers eventually trapped Breedlove and Sosa as they attempted to flee on foot.
Anthony Davis testified that he was involved in a conversation in jail with Breedlove and Sosa in which Breedlove stated he had killed Garcia and Breedlove urged Sosa to remain quiet about Garcia's death.
Breedlove called no witnesses and introduced no evidence in his defense. The jury found Breedlove guilty as charged. The district court sentenced him to life imprisonment. Breedlove filed a timely notice of appeal.
Breedlove first argues on appeal that his trial violated the requirements of the Kansas speedy trial statute, K.S.A. 22–3402 (Furse).
On April 21, 2008, this court issued the mandate in Breedlove, 285 Kan. 1006, 179 P.3d 1115. The new jury trial did not commence until June 22, 2009. Prior to trial, Breedlove filed a motion to dismiss, arguing that, under K.S.A....
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