Bevill v. State

• Citation: 472 N.E.2d 1247
• Decision Date: 10 January 1985
• Docket Number: No. 483,483
• Parties: James Mitchell BEVILL, Appellant, v. STATE of Indiana, Appellee. S 149.
• Court: Supreme Court of Indiana

Page 1247

472 N.E.2d 1247

James Mitchell BEVILL, Appellant, v. STATE of Indiana, Appellee.

No. 483 S 149.

Supreme Court of Indiana.

Jan. 10, 1985.

Lee J. Christakis, Gary, for appellant.

Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is a direct appeal from convictions of attempted murder, a class A felony, Ind.Code Secs. 35-42-1-1 and 35-41-5-1; burglary, a class A felony, Ind.Code Sec. 35-43-2-1, and burglary, a class B felony, Ind.Code Sec. 35-43-2-1. Appellant filed a notice of defense of insanity. The case was tried by a jury. Appellant was sentenced to two concurrent thirty year terms on the two class A felonies and a ten year consecutive term on the class B felony.

Appellant raises four issues on appeal: (1) whether the trial court erred in denying his motion to suppress evidence of inculpatory statements made by him, (2) whether he had effective assistance of counsel (3) whether the evidence adduced at trial was sufficient to support his conviction for attempted murder; (4) whether his conviction and sentencing for both attempted murder and class A burglary amounts to a violation of his constitutional right not to be put in double jeopardy.

These are the facts which tend to support the determination of guilt. On January 7, 1982, Lucy Brown arrived at her house at approximately 8:15 P.M. When she entered the house, she saw a light on in the back bedroom. She called her son's name, and, as she approached the bedroom, a young man confronted her and brandished a knife. She backed away and escaped out the back door. She ran toward her next door neighbor's house and slipped and fell on the ice. The young man caught up with her and stabbed her twenty-seven times. She fought, and he stopped the attack and ran back into the house. She pulled herself up off the ground and went to her neighbor's house for help.

Later, she gave a description of her assailant to the police. Also, the police discovered that the glass on the back door had been broken and that the steel mesh had been pushed away. Also, a brown suede right hand glove, a watch, and a pair of eyeglasses were discovered.

At midnight that same evening, Walter Wozniak returned to his home. He discovered that his house had been broken into and that his .38 caliber semi-automatic pistol was missing from beneath his mattress.

Based on the evidence gathered, Detective Summers went to the home of appellant's parents. The Detective obtained several items of appellant's clothing, including a brown suede left hand glove.

On January 9, 1982, appellant was arrested. A .38 caliber semi-automatic pistol was found in his possession. Wozniak identified the pistol as his.

Detective Summers and Moulesong questioned appellant. Before the questioning commenced, they read and explained to him his rights; and, as a result, he read and signed a waiver of rights form. They talked to him for an hour, from 12:50 a.m. to 1:50 a.m.

He admitted being in Lucy Brown's driveway, but he denied committing the crime. He did, however, admit to picking up the knife beside her and running away with it. When the detectives attempted to find out more about the knife, he became evasive and nervous; consequently, they ended the session. The next afternoon appellant requested to talk to the detectives. He signed another waiver of rights form. This second session lasted almost two hours, and he confessed to breaking into Lucy Brown's house and to holding a knife over her in the driveway. He also confessed to breaking into Wozniak's house. At the end of the conversation, he refused to sign a written statement of his story because he claimed that the detectives had changed what he had said.

At trial, three psychiatrists testified that they had examined him and found him to be sane at the time he committed the crime.

I

Appellant claims the trial court erred when it denied his motion to suppress his inculpatory statements to the police. He also argues that it was error to admit over objection such statements at trial.

It is the State's burden to prove beyond a reasonable doubt, that the defendant voluntarily and intelligently waived his rights, and that the defendant's confession was voluntarily given. Shepler v. State (1980), Ind., 412 N.E.2d 62; Jackson v. State (1980), 274 Ind. 297, 411 N.E.2d 609. Upon a review of the denial of a motion to suppress a confession and the subsequent admission of that confession over objection, this Court will not weigh the evidence nor judge the credibility of witnesses. The admissibility of a confession ultimately depends upon questions of fact which are to be resolved by the trial court. The ruling that a statement given by the accused during custody and interrogation is admissible will be affirmed where there is substantial evidence of probative value from which a rational trier of fact could infer beyond a reasonable doubt that the required free, voluntary and knowing action on the part of the accused took place. Magley v. State (1975), 263 Ind. 618, 335 N.E.2d 811.

At the hearing on the motion to suppress, Officer Moulesong referred to two interrogation sessions with the appellant. At the first session which occurred approximately one hour after appellant was arrested, Moulesong testified that he read appellant his rights from a waiver of rights form and that appellant read the form himself. Moulesong then testified that appellant signed the waiver of rights form. The second session occurred approximately fourteen hours later. Appellant requested to talk to Detectives Moulesong and Summers. Moulesong testified that appellant signed another waiver of rights form and that it was executed in the same manner as the first. It was in this second session that appellant gave the most incriminating details of his participation in the crime and revealed the location of the knife used to stab Lucy Brown. Appellant admitted at the motion to suppress hearing that he signed the waiver of rights forms and that he had spoken voluntarily with the officers.

In spite of these admissions, appellant claims that his statements were not voluntarily given because of his refusal to sign a written statement of his confession drafted by the detectives. Appellant explained his refusal to sign a written statement in response to this question:

Q. Why didn't you give a written statement, only a verbal statement?

A. When they talked to me, I tell them one thing, and they were changing my words.

Appellant's response indicated that he was concerned with the accuracy of the content of his story as retold by the officers. This concern does not indicate a misunderstanding of the consequences of his prior choice to forego his rights. Rather, a desire that one's statement be reported accurately creates the inference that the choice to give the statement was the product of free, voluntary and knowing action.

We find that the evidence sufficiently supported the inference of a free, voluntary and intelligent waiver of rights before both statements were made to the police and that the statements themselves were likewise freely and voluntarily given. It was not error to permit their introduction into the evidence.

II

Appellant argues that his trial counsel's assistance was ineffective. Appellant bases this claim on nine alleged errors that indicate his counsel's ineffectiveness: (1) that counsel waived the opening statement; (2) that counsel failed to object to seventeen of the State's exhibits; (3) that counsel did not move for a directed verdict; (4) that counsel did not move for a judgment on the evidence; (5) that counsel filed a deficient Belated Motion to Correct Errors; (6) that counsel failed to cross-examine witnesses, Fielden and Klasner; (7) that counsel insufficiently cross-examined Michael Wozniak; (8) that counsel permitted appellant to testify despite an insanity defense; and (9) that counsel offered no witness in support of appellant's insanity defense.

These guidelines are to be followed when reviewing ineffective assistance claims.

THE STANDARD OF COMPETENCY:

"The proper standard for attorney performance is that of reasonably effective assistance." Strickland v. Washington (1984), --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674.

THE PRESUMPTION OF COMPETENCY:

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance, after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac (1982), 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' Strickland, supra [104 S.Ct.] at 2065.

THE TWO PART STANDARD OF REVIEW:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient-performance prejudiced the defense. This requires showing that counsel's errors were so...