Brockway v. State, 984S354

• Decision Date: 06 January 1987
• Docket Number: No. 984S354,984S354
• Parties: Kenneth Richard BROCKWAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 105

502 N.E.2d 105

Kenneth Richard BROCKWAY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 984S354.

Supreme Court of Indiana.

Jan. 6, 1987.

J. Scott VanDerbeck, Richard K. Muntz, P.C., LaGrange, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Defendant Kenneth Richard Brockway was charged with robbery while armed with a deadly weapon, a class B felony ¹ and with being a habitual offender. A jury found him guilty of the robbery charge

only. This direct appeal raises the following issues:

1. Ineffective assistance of counsel;

2. Admission of defendant's statements as fundamental error;

3. Failure to seek change of venue as fundamental error; and,

4. Insufficiency of evidence.

ISSUE I

Defendant first contends that he was denied the effective assistance of counsel and alleges "at least five major errors committed during the course of the trial." These include: failure to object to the introduction of defendant's tape-recorded statement; failure to object to the admission of defendant's volunteered comment when arrested; failure to file a motion for change of venue; failure to call witnesses, including the defendant; failure to tender jury instructions and to object to instructions tendered by the State and the court; failure to challenge the presentence report admission at sentencing that "there possibly weren't any mitigating circumstances"; and failure to argue for less than the presumptive sentence.

Reversal for ineffective assistance of counsel is appropriate in cases where a defendant shows both (a) deficient performance by counsel, and (b) resulting prejudice from errors of counsel so serious as to deprive the defendant of a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. A claim of ineffective assistance must identify the claimed errors of counsel, so that the court may determine whether, in light of all circumstances, the counsel's actions were outside the range of professionally competent assistance. The proper measure of attorney performance is reasonableness under prevailing professional norms. It shall be strongly presumed that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Judicial scrutiny of counsel's performance is highly deferential and should not be exercised through the distortions of hindsight. Isolated poor strategy, inexperience, or bad tactics do not necessarily amount to ineffectiveness of counsel. Strickland, supra; Burr v. State (1986), Ind., 492 N.E.2d 306; Price v. State (1985), Ind., 482 N.E.2d 719; Jackson v. State (1985), Ind., 483 N.E.2d 1374; Seaton v. State (1985), Ind., 478 N.E.2d 51.

Defendant's argument is focused upon the failure of his trial counsel to object to two of the defendant's statements, particularly a tape-recorded confession.

On September 6, 1983, a robbery occurred at the Topeka Indiana Branch of the Farmer's State Bank. Approximately two hours later, defendant was apprehended in a field, immediately told his Miranda rights, and then transported to the police station. About one-half hour after arrival at the station, police asked if defendant would be willing to give an interview, but did not repeat the Miranda warning at that time. Defendant responded, "I really f____d up this time," and indicated to police that he did not want to talk further. This expression of regret is not sufficiently specific, even in the context of the surrounding circumstances, to necessarily convey an admission of guilt with respect to the offense charged.

On the afternoon of September 8, defendant's Miranda rights were again read to him, and he signed a written waiver and consented to make a tape-recorded statement. Before beginning the statement, a state police detective asked the defendant if he wanted to talk with attorney Frank Stewart, and defendant replied "not at this time." At trial, the detective testified that attorney Stewart had appeared at the jail and indicated that he represented the defendant. The defendant's recorded interview was taken. It lasted thirty-six minutes and concluded at 2:54 p.m. The record shows that on the same day as the recorded interview, an initial hearing was conducted before the court. At the hearing, the defendant stated that he had conferred with attorney Stewart but had insufficient funds to employ him, and the court appointed a public defender to represent the defendant.

Unfortunately, the record does not indicate whether the initial hearing occurred before or after the recorded interview. It likewise does not indicate whether the interview was initiated by the police or the defendant.

Engaging in the required presumption of reasonable competence of counsel, we presume that trial counsel knew that the facts would not support a motion to suppress or trial objection regarding the recorded confession. It may be that the initial hearing occurred later in the afternoon, after the recorded interview, and that, from the defendant's subjective state of mind, he had not requested counsel before the recorded statement. See, Moran, Superintendent, Rhode Island Department of Corrections v. Burbine, 475 U.S. ----, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). In the alternative, defendant's trial counsel may have known that the recorded interview was in fact initiated by the defendant rather than by the police.

With respect to the...