Wesley Purkey v. United States

Citations: 729 F.3d 860; 2013 WL 4766845Docket: 10-3462

Court: Court of Appeals for the Eighth Circuit; September 6, 2013; Federal Appellate Court

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Wesley Ira Purkey appealed the denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 following his conviction for the interstate kidnapping, rape, and murder of a sixteen-year-old girl. The appeal was submitted to the Eighth Circuit Court of Appeals, which focused on whether Purkey received effective assistance of counsel during the penalty phase of his trial and whether the district court erred by not holding an evidentiary hearing. 

In his motion, Purkey argued that his trial counsel, Frederick Duchardt, failed to meet the standard of effective assistance as required by the Sixth Amendment, citing a lack of adequate investigation and failure to call certain witnesses. He presented new mitigating evidence through affidavits from family, friends, and expert witnesses, alleging that Duchardt’s performance was subpar.

The Government sought a response from Duchardt, who provided a detailed 117-page affidavit countering Purkey’s claims and explaining his strategic decisions during the trial. The district court ultimately denied Purkey’s motion, concluding that Duchardt's performance did not fall below the objective standard of reasonableness and that Purkey did not demonstrate the required prejudice under Strickland v. Washington. The court also denied the request for an evidentiary hearing, stating that even if the new evidence was accepted as true, it did not establish any basis for finding prejudice.

Purkey sought a certificate of appealability (COA) from the court after the district court denied his motion. The court granted the COA on the issue of whether Duchardt’s performance during the penalty phase amounted to ineffective assistance of counsel under the Sixth Amendment. Specifically, Purkey challenges three areas of Duchardt's performance: (1) failure to adequately prepare and present three expert witness testimonies; (2) inadequate investigation and preparation of two mitigating witnesses, leading to prejudicial rather than beneficial testimony; and (3) failure to investigate and present additional mitigating evidence. 

To demonstrate ineffective assistance, Purkey must show that Duchardt's performance was deficient and that this deficiency caused him prejudice, which requires establishing a reasonable probability that the outcome would have been different if competent counsel had acted. This includes showing that a competent attorney would have introduced available mitigating evidence, potentially leading to a different sentence. The standard is a substantial likelihood of a different result, not merely a conceivable one.

During the penalty phase, Duchardt presented a comprehensive mitigation case over two days, with testimony from eighteen witnesses, including Purkey’s family members and prison acquaintances. Testimonies revealed significant physical and emotional abuse suffered by Purkey during childhood, including maltreatment by both alcoholic parents and sexual abuse of his brother by their mother. Testimonies highlighted Purkey's remorse, efforts to renounce his past affiliations (like attempting to remove Aryan Brotherhood tattoos), and positive character assessments from friends and prison officials. Key testimonies from expert witnesses detailed the impact of Purkey's childhood abuse.

Dr. Peterson testified that Purkey was sexually abused by his mother, Velma, from ages six to fourteen, during which she taught him inappropriate sexual behaviors and involved him in sexual activities with her. Following their father’s departure, Purkey observed Velma engaging with multiple partners. Around the age of fourteen, Purkey’s father encouraged him to seek sexual experiences with prostitutes, further complicating his emotional and sexual development. Dr. Peterson concluded that these traumatic experiences led Purkey to struggle with normal sexual interactions, seeking gratification in a controlled manner. He corroborated Purkey’s account by reviewing medical records, including a 1982 diagnostic report indicating a serious personality disorder linked to his childhood abuse, as well as statements from Purkey’s aunt supporting his claims.

Dr. Cunningham provided additional testimony detailing the sexual acts Velma forced Purkey to perform, noting that it was common for males to conceal such abuse. He also pointed out evidence of sexual abuse in Purkey’s records from age fifteen. Clinical psychologist Dr. Bruce Leeson testified about Purkey's significant frontal lobe damage and below-average IQ, which impaired his impulse control. Over two days, the jury heard from various witnesses attesting to Purkey's positive influence and arguing against a death sentence based on his abusive upbringing.

In his 2255 motion to vacate, Purkey claims his attorney, Duchardt, inadequately presented evidence of his childhood abuse and positive traits, and poorly prepared mitigation witnesses. Witnesses expressed dissatisfaction with Duchardt’s investigative techniques, with Hamilton noting he withheld crucial information due to Duchardt's son's presence during their interview. Hamilton recounted a violent incident involving Velma that he would have shared if prompted. Purkey’s daughter, Angie Genail, criticized Duchardt for scheduling her interview on her wedding day and failing to prepare her adequately, which affected her testimony about Purkey’s creative works. Marguerite Hotchkiss, Purkey's aunt, also felt unprepared due to the teleconference format of her testimony.

Duchardt's preparation of Hotchkiss is challenged by claims that she could have testified about Purkey's neglectful childhood, characterized by parental substance abuse and poor parenting from his mother, Velma. There are allegations that Duchardt failed to contact or call key witnesses, including Purkey’s cousin and childhood friends, who would corroborate claims of abuse while also recognizing Purkey's positive impact on their lives. A prison minister noted Purkey's concern for his family and lack of issues with other inmates, while family friends commended him for assisting in solving a murder in prison, although one friend described him as compassionate yet unstable due to his traumatic upbringing. Dr. Rex Newton, a prison psychologist from 1987, believed Purkey had been sexually abused and indicated he would have testified if approached by Duchardt. Purkey also criticized Duchardt for inadequately preparing several expert witnesses, including Dr. Peterson, Dr. Cunningham, and Dr. Leeson, asserting that detailed testimonies regarding his sexual abuse were not sufficiently presented, and that the use of visual aids was not permitted. Furthermore, Purkey argued that the testimonies of Mark Russell and Dr. William Grant were prejudicial, as Russell's statement about Purkey's housing due to behavioral issues and Dr. Grant's characterization of Purkey's anxiety as belligerence negatively impacted his case. Ultimately, the arguments presented by Purkey were deemed cumulative and insufficient to demonstrate prejudice under the Strickland standard, as Duchardt had already provided extensive evidence regarding Purkey's childhood abuse and potential societal benefits of a life sentence.

Dr. Peterson's testimony indicated that Purkey exhibited signs of childhood sexual abuse as early as 1982. The Kansas State Reception Diagnostic Center report, referenced by Dr. Peterson, serves as corroborating evidence that Purkey claims could have been presented by Dr. Newton. Purkey's claims of “prejudicial” testimony due to alleged inadequacies in mitigation witness preparation were minimal compared to the comprehensive mitigation case presented. The newly submitted evidence was deemed cumulative, and the alleged prejudicial testimony insignificant, leading to the conclusion that Purkey experienced no prejudice, even if Duchardt's representation was constitutionally inadequate. This conclusion aligns with case law (Hanegan v. Miller; Cullen; Wong; Bobby v. Van Hook), which supports that no prejudice exists when new evidence largely duplicates existing mitigation evidence. If Purkey's filings introduced new evidence, the assessment of prejudice would involve reweighing aggravating and mitigating evidence to see if the outcome would differ. The heinous nature of the underlying crime, coupled with substantial incriminating evidence presented during the guilt phase, provided context for the aggravation case during sentencing. Purkey's confession revealed that after a job interview in Kansas City, he approached sixteen-year-old Jennifer Long, offering her alcohol before forcibly taking her to his home. There, he raped her at knifepoint, and when she attempted to escape, he stabbed her multiple times, ultimately killing her. Purkey disposed of her body in a toolbox and later purchased a chainsaw.

Purkey dismembered Jennifer's body using a chainsaw, requiring frequent cleaning due to clogs from remains. He observed stab wounds on her heart during this process. After dismemberment, he placed the body parts into plastic bags with yard debris and enlisted his stepchildren to help clean the basement with bleach. Purkey burned the bags in his fireplace while his family was away, using diesel fuel to maintain the fire, but some bones did not fully incinerate. He crushed the remaining fragments and disposed of them in a septic pond in Clearwater, Kansas. 

Jennifer’s murder remained undisclosed until Purkey, while incarcerated for the unrelated murder of 80-year-old Mary Ruth Bales, contacted law enforcement. The jury learned about Bales’s murder during the penalty phase. Purkey had met Bales while employed by a plumbing company and later returned to her home under the pretense of doing work for her. Instead, he bludgeoned her to death with a claw hammer, leaving defensive wounds on her hands. After the murder, he stayed at her home, using drugs and eating her food. He returned the next day intending to burn her house but was arrested after neighbors reported him.

Purkey pleaded guilty to Bales’s murder and faced a life sentence. In an effort to avoid state prison, he confessed to the murder of Jennifer Long, seeking a transfer to federal prison. The prosecution presented evidence of Purkey’s thirteen prior felony convictions, including serious offenses like first-degree burglary and aggravated robbery. Testimonies during the penalty phase included accounts of Purkey's violent past, including a kidnapping and a prison rape incident.

Purkey's tattoos, including symbols associated with the Aryan Brotherhood, were presented as evidence of his gang affiliation. Victim Jennifer Long's family emotionally expressed the profound impact of her murder, with her father stating that Purkey's actions destroyed his life, while her mother detailed the extensive losses she suffered. The jury identified nine aggravating factors and sentenced Purkey to death, citing the brutal nature of his crimes, including the murders of Long and Mary Ruth Bales, as well as his extensive criminal history. The court concluded that the evidence against Purkey was overwhelmingly aggravating, rendering any potential mitigating evidence insufficient to alter the jury's decision. Purkey's argument that the district court relied on an incomplete assessment of mitigating factors was rejected, as the jury did not vote for any mitigating factors out of twenty-seven presented. The court affirmed that it reviewed the issue of prejudice independently and had previously established that the jury is not required to identify mitigating factors. Additionally, Purkey's request for an evidentiary hearing was denied, as the existing record conclusively demonstrated that he could not establish a violation of his right to effective assistance of counsel under the Strickland standard. The district court's denial of the hearing was found not to be an abuse of discretion. Consequently, the court affirmed the lower court's decision and denied Purkey's late request to represent himself.