State v. Breitenbach
| Decision Date | 26 March 2021 |
| Docket Number | No. 120,503,120,503 |
| Citation | 483 P.3d 448 |
| Parties | STATE of Kansas, Appellee, v. Corbin J. BREITENBACH, Appellant. |
| Court | Kansas Supreme Court |
Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
This is a direct appeal of criminal convictions after jury trial for attempted capital murder, aggravated criminal sodomy, and aggravated burglary. We affirm.
Late one evening, the parents of L.A. dropped her off, along with her younger brother, at the apartment of a friend, Elizabeth "Lisa" Brandyberry. L.A. was seven years old at the time. It was around 10 p.m. by the time the children arrived, so everyone immediately went to bed.
Brandyberry was wakened around 2:30 a.m. to the sound of L.A. crying in another bedroom. When she went to investigate, Brandyberry saw blood everywhere. She called 911.
L.A. was taken to the hospital for medical care and to undergo a sexual assault exam by trained Sexual Assault Nurse Examiner (SANE), Dana Loganbill. L.A. was able to tell Loganbill that she was at the hospital because she had been awakened by a man who looked kind of like her dad but without a beard or mustache and that the man choked her and did something to her private parts. L.A. told Loganbill she might have seen the man before but she did not know where.
Loganbill observed that L.A. was clearly distressed and in pain but also seemed to be dissociated at times, particularly during the genital exam. During the head-to-toe exam, Loganbill noted many injuries that she classified as remarkable. In particular, the strangulation injuries caused petechiae all across her face and ears, throughout her scalp, along her neck, and in her mouth and throat. In relation to strangulation, petechiae occurs when external pressure is placed on the neck which causes difficulty breathing and difficulty for blood to leave the head and neck. This causes overfill and distention in the capillaries, which causes them to burst and produce red spots. Loganbill had never seen that much petechiae in a child.
Before moving to the genital examination, Loganbill had to administer pain medication to L.A.—which is not standard—because of the severity of the injuries she felt she would encounter and because even movement was hurting L.A. Loganbill was only able to do partial external swabs before halting the exam because of the severity of the injuries. Loganbill decided to call in an OB/GYN to assess the injuries before continuing the exam.
Dr. Teresa Craddock, an OB/GYN, assessed L.A.'s injuries and testified that although she had worked with SANE/SART before in pediatric cases, she had never seen this severe of an injury on any patient. Before completing the surgery and while consulting with Loganbill, Dr. Craddock was able to collect the remaining necessary swabs.
Physical evidence was photographed, recorded, and collected from Brandyberry's apartment that same morning. Investigators found blood throughout the apartment, including in the bathroom, the bedroom where L.A. had been sleeping, and the balcony. They also found blood on the door and privacy wall of Brandyberry's balcony. Samples were collected from all these locations for the possibility of subsequent testing, and a fingerprint was lifted from Brandyberry's balcony door. Inside the apartment, investigators found what they presumed to be semen stains on the couch and collected samples. The investigators clarified that the stains could not be confirmed to be semen without additional laboratory testing.
At this point, police had few suspects save for L.A.'s father, who officers interviewed that morning and who voluntarily turned over DNA and clothing samples when requested. Another individual of interest was Brandyberry's boyfriend, who was banned from the apartment by a PFA order, and who had broken into Brandyberry's apartment twice before. This individual was never contacted.
During the investigation, Detective Jason Waite, the lead detective assigned to L.A.'s case, contacted Sedgwick County Regional Forensic Science Center (the Science Center) and requested that the processing of the collected evidence be made a priority. Sarah Geering, a forensic scientist at the Science Center, was able to identify sperm cells on some of the samples and moved forward with testing two of them—the anal swab and the swab from the labia majora and clitoris. Geering obtained a sperm cell fraction from the latter, but it contained only a partial DNA profile and was deemed to be of no comparative value.
The anal swab, however, provided more useful scientific evidence. Geering found a DNA profile—which she uploaded to the Combined DNA Index System (CODIS) database to check against existing profiles linked to known individuals—to be a mixture of two individuals. The major contributor to that DNA profile was consistent with that of a previous Kansas offender, Corbin Breitenbach, while the minor contributions were attributable to L.A. Geering's statistical calculation showed that the probability of selecting an unrelated individual at random who would exhibit a profile that is the potential major contributor to the profile obtained from the sperm cell fraction of the anal swabs is approximately 1 in 107 octillion. When questioned about prioritizing or expediting the testing, Geering stated that she did not have any concerns about the speed with which her analysis was conducted.
A few days later, Detective Waite interviewed Jessica Fowler, whom Breitenbach had been dating for about six weeks. Fowler lived in the apartment building adjacent to Brandyberry's and told Waite that Breitenbach had stayed there the night of L.A.'s assault. According to Fowler, she picked Breitenbach up from a bar around 1 a.m. that morning and they arrived back at her apartment by 1:30 a.m.
Upon returning home, Fowler let her dog out and sat on the steps of her apartment building while Breitenbach went for a run. Approximately 20 to 25 minutes later she saw Breitenbach walking back up the same way he came, and they went inside together. Fowler went straight to bed while Breitenbach went to the bathroom first but did not shower. Fowler remembers Breitenbach being sweaty as if he had been on a run like he said, but that he had not changed, he was not dirty, and she did not see blood on his clothes.
L.A. was taken to the Child Advocacy Center to determine if she could identify her attacker from a photo lineup. One at a time, she was shown photos and asked if she recognized them. On the third photo, L.A. pointed to Breitenbach and said, "That's him."
Breitenbach was arrested and taken to the Sedgwick County Jail. More evidence, including a pair of Reebok tennis shoes, was collected from the house he shared with his mother and grandmother. The Reebok shoes were submitted to the Science Center for testing and found to contain a blood stain with a DNA profile consistent with L.A. The morning after his arrest, Breitenbach made a call to his mother and grandmother during which he told them he was a monster, that it was all true about him, that he was dangerous and could not control himself, that he hurt "her" so bad, and that he wanted forgiveness from them. The majority of the phone call recording was admitted and entered as evidence.
Breitenbach was charged with attempted capital murder, or in the alternative, rape, aggravated criminal sodomy, and aggravated burglary. At the preliminary hearing, Breitenbach was represented by Eli O'Brien from the public defender's office. A few months later, O'Brien notified the court that he was leaving the public defender's office and attorney Jason Smartt stepped in to represent Breitenbach. Breitenbach was unhappy about the transition but did not object to it.
Breitenbach subsequently filed multiple pro se motions, including a "Motion to Compel Judicial Notice of Ineffective Assistance of Court Appointed Trial Counsel" as well as a "Motion for Substitution of Attorney." His general complaints in the former included allegations that the public defender's office attempted to pressure or intimidate him into accepting a plea deal and that the constant switching of attorneys unduly delayed his trial. In the latter motion, he asked for relief from "ineffective counsel" and claimed there was a conflict of interest between himself and the entire public defender's office. His complaints against Smartt included not meeting with Breitenbach to discuss the merits of pro se motions, lying to the court about discussing motions with Breitenbach, and telling Breitenbach that the indigent defense budget would not cover additional DNA testing. Breitenbach argued that because Smartt would not seek expert analysis of the DNA evidence in an effort to conserve the indigent defense fund, it presented a conflict of interest with the whole public defender's office.
In a hearing on the motion, Breitenbach argued that the public defender's office's desire to save money was directly at odds with its ability to provide him with an adequate defense and that there was "extremely important" material that was yet to be tested. Breitenbach also claimed that Smartt had lied to him about what his charges were, but when asked if he understood the charges against him and the potential sentence in the case, Breitenbach said that he was completely aware of them. Eventually the district court ruled that while it understood there could be disputes over what is important and what is not important, it found there was no valid ineffective assistance of counsel or conflict of interest claim. The district court further found that there was no fundamental right or requirement that additional testing be done if there was already a forensic test done by the Science Center and having a...
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