Wednesday, April 20, 2011

Third Circuit invalidates robbery conviction based on Brady violations and ineffective assistance of counsel

In Breakiron v. Horn, (April 18, 2011), after the District Court had invalidated Breakiron's murder conviction and death sentence, the Third Circuit found three reasons to invalidate the robbery conviction: (1) the Brady violations that had caused the District Court to invalidate the murder conviction were also material to the robbery conviction; (2) trial counsel had been constitutionally ineffective in failing to request the lesser-included offense of theft; and (3) trial counsel had been constitutionally ineffective in failing to take corrective action when a venire panel member was exposed to evidence about Breakiron’s propensity to commit robberies and then served on the jury.

Mark Breakiron killed the bartender of a bar in Uniontown, Pennsylvania, and stole money from the bar. He was charged with first-degree murder and robbery. At trial, Breakiron argued, based on a voluntary intoxication/diminished capacity defense, that he did not have the specific intent to kill and so was only guilty of third-degree murder. In addition, he argued he decided to steal the money after the attack was complete, so he was guilty of theft not robbery. Ellis Price was incarcerated with Breakiron before his trial and testified to statements Breakiron made to him that suggested the attack was premeditated. The jury convicted Breakiron of first-degree murder and robbery and found as an aggravating factor that Breakiron committed the murder while committing a felony (robbery). Breakiron was sentenced to death.

The Pennsylvania Supreme Court affirmed. Breakiron filed a petition for post-conviction relief, which was denied after the court held an evidentiary hearing. The Pennsylvania Supreme Court affirmed. Breakiron filed a federal habeas petition. Breakiron also filed a second state petition, raising Brady issues, which the state court dismissed as untimely. The District Court (W.D.Pa.) found a Brady violation regarding impeachment evidence about a key witness, Price. The Brady violations were failure to disclose that Price (1) had been convicted of an impeachable offense, (2) had sought a deal in exchange for his testimony against Breakiron, and (3) was a suspect in an unrelated criminal investigation pending at that time for which he was never charged. The District Court invalidated Breakiron’s murder conviction and death sentence, but not the robbery conviction after concluding that Price’s testimony was not material to the robbery conviction. The government did not appeal, so only the robbery conviction was before the Third Circuit.

Within the deferential strictures of a review under the Antiterrorism and Effective Death Penalty Act (AEDPA), the Third Circuit invalidated Breakiron’s robbery conviction. The Third Circuit found that Price’s testimony was material to the robbery conviction because (1) it suggested that the entire incident was a premeditated and intentional plan, and (2) it undercut Breakiron’s credibility, which was crucial for his theory of defense.

The Third Circuit found that trial counsel had been constitutionally ineffective in failing to request a charge for the lesser-included offense of theft where the trial strategy had been to concede that Breakiron had committed a theft but not a robbery. Thus, where Breakiron was guilty of some offense, and the jury instructions only presented the jury with an all-or-nothing choice between robbery and outright acquittal, there was a substantial risk that the jury would convict him of an unproven offense (robbery).

The Third Circuit found that counsel was constitutionally ineffective for failing to take corrective action at voir dire. A member of the jury that convicted Breakiron had heard another venire member state he knew Breakiron and that Breakiron “used to do a lot of robberies.” The Third Circuit expressed concern at the juror’s exposure to propensity evidence which is so patently prejudicial that it is not necessarily cured by a limiting instruction. Even worse, the propensity evidence here was about the very crime at issue, robbery. The Third Circuit determined there was no reasonable basis for any belief in the impartiality or fairness of this juror. The Third Circuit found prejudice using an objective standard: “Whether there is a reasonable probability that a juror who had not been exposed to that statement would have voted to acquit Breakiron of robbery.” The Court found there was a reasonable probability that corrective action by counsel would have produced a different result.

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