Brimhall v. State

Decision Date09 March 1972
Docket NumberNo. 770S165,770S165
Citation279 N.E.2d 557,258 Ind. 153
PartiesJerry BRIMHALL, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

John D. Shuman, Elkhart, for appellant.

Theodore L. Sendak, Atty. Gen., Walter E. Bravard, Jr., Deputy Atty. Gen., Indian apolis, for appellee.

DeBRULER, Judge.

On March 7, 1970, a Saturday night, a fight broke out in the Sportsman's Bar in Goshen, Indiana, and sometime later a shot was fired in the Bar. In connection with that incident, the appellant was asked to report to the police department for questioning and after the appellant went to the police department in response to this request, he was arrested on a charge of public intoxication. Sometime on the following Monday, March 9, 1970, the appellant was charged by affidavit with assault with intent to kill. The relevant portion of the charging affidavit read as follows:

'that on or about the 8th day of March, 1970, at the Sportsman's Bar, in the City of Goshen, Elkhart County, in the State of Indiana, one Jerry L. Brimhall, having the ability to do so did then and there attempt to commit a violent injury upon Donald Cook and did then and there intend to kill said Donald Cook by attacking and swinging at said Donald Cook with a broken beer bottle.'

The court found that probable cause existed for the issuance of a warrant for the arrest of the appellant, and set the bail at $25,000.00. On the next day, Tuesday, March 10, 1970, the State moved in open court to amend the charging affidavit to assault with intent to commit a felony, to-wit: mayhem, rather than assault with intent to kill. The appellant appeared before the Honorable Aldo J. Simpson, Judge of the Elkhart Circuit Court of Elkhart County, and entered a plea of guilty to assault with intent to commit a felony, to-wit: mayhem. The following is a record of that guilty plea proceeding:

'MR. PETERSON: Mr. Brimhall will you please come up? Let the record show that the defendant is in court in person and by Richard W. Mehl, his attorney. Waives arraignment and pleads guilty to assault with intent to commit a felony, to wit: Mayhem.

THE COURT: All right.

MR. PETERSON: And we ask for a presentence investigation.

MR. MEHL: You understand this and this is what you want to do?

MR. BRIMHALL: We don't have to have a presentence investigation, do we?

MR. MEHL: If you want to, you can waive it.

THE COURT: What is the penalty?

MR. PETERSON: Imprisonment for not less than ten years, your Honor.

THE COURT: All right. How old are you?

MR. BRIMHALL: Twenty-nine.

THE COURT: You are twenty-nine. When were you twenty-nine?

MR. BRIMHALL: The second of January, 1941.

MR. MEHL: No, 1970.

THE COURT: You were born in 1941?

MR. BRIMHALL: Yes.

THE COURT: O.K.

(thereupon, Judge Simpson dictated the following docket entry):

'Prosecuting attorney amends the affidavit to show rather than assault with intent to kill to assault with intent to commit a felony, to-wit: Mayhem. Defendant in court in person and by Richard W. Mehl, his attorney. Waives arraignment and pleads guilty to assault with intent to commit a felony, to-wit: Mayhem. Defendant waives presentence investigation and asked that he be immediately sentenced and committed. Finding that the defendant is guilty of assault and battery with intent to commit a felony, to-wit: Mayhem, as charged. That he is 29 years of age. That he be committed to Indiana Reformatory for an indeterminate period of not less than one nor more than ten years. That he be disfranchised for one year. Commitment ordered. Judgment."

Approximately one month later the appellant filed a verified petition for vacation of judgment and for leave to withdraw his plea of guilty and to enter a plea of not guilty, on the grounds that his plea of guilty was not made freely and understandingly. Pursuant to this petition, an evidentiary hearing was held and the court subsequently overruled the defendant's petition. This appeal is from that decision.

At the evidentiary hearing on the petition to withdraw the guilty plea, the following facts were adduced. The appellant testified that he was intoxicated on the Saturday in question and that a fight erupted in the tavern while a friend of his was being ejected. He admitted breaking a beer bottle and brandishing it to keep others from jumping on his friend, but denied swinging it at anyone or cutting anyone. He stated that he was arrested later that evening in the company of two other men who had not been involved in the incident on a charge of public intoxication and that he remained in jail until the following Monday morning. At that time he went to a hearing for public intoxication, and he testified that he posted a $50.00 bond on that charge and was told that he would be released. However, when he returned to the jail to pick up his things he was detained, and several hours later charged with assault and battery with intent to kill. He testified that no one questioned him at any time concerning the events of that previous Saturday night. He stated that he went to a hearing the next morning and spoke to an attorney briefly about his case. He said that the attorney advised him that his bail was set at $25,000.00, and that it would be impossible to get it lowered. He also was told that he would have to wait in jail from three to six months before he went to trial unless he wanted to plead guilty, and that he would have to get another lawyer if he wanted to go to trial.

There is no evidence that the appellant ever discussed his version of the incident with an attorney, and he testified that the first time that he heard anyone had been cut was after he had been imprisoned after several weeks. As to his state of knowledge at the time of entering the plea of guilty, he testified as follows:

'Q. You didn't know what mayhem was at that time?

A. I never heard the word before in my life.

Q. And did you know at that time that Donald Cook didn't want to press charges against you?

A. I didn't know nothing until after I was down at Pendleton for two weeks. I got a letter that said I cut or stabbed Donald Cook, and I knowed I didn't, so I told my people, 'try to get a lawyer and find out why I was charged with cutting somebody'. I knowed I didn't cut and if I didn't cut nobody and they sent me down for that, I might be able to get a retrial and beat this.

Q. When you plead guilty to the charge of assault and battery with intent to commit a felony, to-wit: mayhem, did you know, or had anybody told you, that Donald Cook didn't think you intended to cut him?

A. I didn't even know that Donald Cook's name was mentioned until after I told Mehl I would take one to ten, and then I asked Mehl would he let me see the warrant that was sworn out against me, and I was sitting over there, and he got me the warrant and I read it, and I asked who Donald Cook was. Well, he said, he was one of the guys involved in that thing down at the Sportman's, that swore the warrant out.'

Donald Cook, the victim testified that one of the appellant's friends and an employee of the bar began scuffling and a crowd of people moved outside. The appellant broke a beer bottle on the door and was telling the crowd to leave his friend alone. The owner of the bar grabbed the appellant and told him to settle down and Mr. Cook also grabbed at the bottle. He testified that he did not remember the bottle touching him at that point and that the appellant lowered the bottle to his side. Then a short fight occurred between the original antagonists and the victim and the appellant stood aside and watched it. The following testimony reveals the nature of the wound received in this case:

'Q. When did you first learn you were cut?

A. Well, after it was over and I looked at my arm, and it wasn't cut, it was a scratch.

Q. Where was the scratch?

A. Just across my forearm here.

Q. On the back side of your forearm?

A. Yes.

Q. Between your elbow and your wrist?

A. Yes.

Q. Could you estimate how long the scratch was?

A. About three or four inches.

Q. Was it a deep scratch?

A. No, just like a fingernail.

Q. Like a fingernail would make?

A. Yes.

Q. Did you get any medical attention for this scratch?

A. No, I just went in and wiped if off with a damp rag and went on working.'

The victim, Mr. Cook, further testified that he signed a statement for the police concerning the incidents that evening. When questioned about that portion of the statement which indicated that the appellant had hit him with a bottle, he replied:

'Q. In this statement, Mr. Cook, it says, in part, about halfway down the page, 'Then Brimhall called us niggers and told us to come on outside. Brimhall hit me on the lower left arm with the beer bottle and I received a'--it appears to be a 'four-inch scratch and a small stab wound.' Are these the exact words that you used in telling Sergeant Lung what happened?

A. No, I told him I got a four-inch scratch, and he is the one that said, 'Oh, what is that?' And he pointed to my arm and said, 'puncture wound'. So he put 'puncture wound'.

Q. What, in fact, if you recall, did you tell Captain Lung about your getting scratched?

A. Well, I just told him, you know, Jerry busted the bottle and then I didn't tell him about, you know, me reaching for it and everything, and I said, well, then, I got hit with the bottle. That was the only way I could have got cut. But when I said 'hit', I didn't mean he hit me over the head or something. I reached for the bottle and got hit with the bottle, and then they used a little few choice words. . . .'

He denied that the appellant had intended to strike him at any time.

The appellant's attorney testified that he was in court on the day in question on other matters. He spoke to the appellant briefly and, in response to appellant's questions, told him that he could not get his bail reduced and that his case would not come to trial for at least three months, and would probably be scheduled sometime in September or October, some six...

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