Brooks v. State, 2--373A69

• Docket Nº: No. 2--373A69
• Citation: 161 Ind.App. 552, 316 N.E.2d 688
• Case Date: September 25, 1974
• Court: Court of Appeals of Indiana

Page 688

316 N.E.2d 688

161 Ind.App. 552

John C. BROOKS, Appellant, v. STATE of Indiana, Appellee.

No. 2--373A69.

Court of Appeals of Indiana, Second District.

Sept. 25, 1974.

Harriette Bailey Conn, Public Defender of Ind., Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Following judgment and sentence upon a plea of guilty to manslaughter, ¹ Brooks instigated post-conviction proceedings alleging that his guilty plea was not voluntarily, knowingly and intelligently made, and that he was denied effective representation of counsel.

We affirm.

The evidence with respect to the offense committed, when viewed most favorably to the State, reveals the following facts:

On the evening of May 23, 1969, Brooks was visiting his mother's home at 2728 North Guilford in Indianapolis. A number of people were present, among them the deceased, one John Herman King.

A witness, Joe Landers, stated that he saw Brooks talking to the decedent in the kitchen of the apartment, and that Brooks was heard to say at that time that he (Brooks) was trying to get some money from someone. Landers left the apartment about 11:45 that night. He had seen Brooks leave just before him. As Landers reached the sidewalk, he saw the decedent and Brooks struggling on the ground. There is a street light in front of the house, and Landers was about three feet away from Brooks. Brooks was stradding decedent, with his hands on decedent's neck or face, and decedent was gasping for breath. On being told by Brooks to 'go about his business', Landers apparently did just that.

Soon thereafter, King's body was discovered between the sidewalk and street in front of 2726 North Guilford. The cause of death was later determined to be manual strangulation. As onlookers gathered about the body, Brooks appeared, crying and said 'I don't want to go back, I don't want to go back.' (Brooks had previously been incarcerated.) His cousin asked Brooks 'what did you do that for' and told him to get out of town, as the police were being called.

The police soon arrived, and noted signs of a struggle along the small sidewalk leading from Brooks' mother's house towards the street. A small decorative border fence had been damaged, about five to six feet from the front sidewalk, and police officers recovered Brooks' draft registration, draft classification card and a payment book for a clothing store at the location of the apparent struggle.

The next night, May 24, 1969, Brooks was arrested after being discovered fighting with another man in a car. During the course of the arrest, Brooks was observed dropping two rings to the ground. The rings were recovered and proved to be a wedding band and a diamond ring, both belonging to the deceased.

Brooks was indicted on two counts, first degree murder and felony murder. Brooks was represented by two privately retained attorneys. Extensive hearings were held on Brooks' Motion to Let to Bail which the defense utilized to conduct pre-trial discovery.

On October 19, 1970, Brooks appeared in person and by counsel to withdraw his plea of not guilty and to enter a plea of guilty to the charge of manslaughter as covered by count one of the indictment. He was questioned and advised by the court, further witnesses were heard, and the plea was accepted. Brooks was sentenced to the Indiana State Reformatory for two to twenty-one years.

At the post-conviction hearing, conducted on two separate dates, Brooks was represented by two attorneys from the Public Defender's office. Brooks' petition was denied.

He raises three issues for our review.

1. Was his guilty plea coerced by the threat of life imprisonment on the First Degree Murder charge?

2. Did he sustain the burden of establishing that his guilty plea had not been knowingly and intelligently made?

3. Was he denied adequate representation by counsel?

I BROOKS' GUILTY PLEA WAS NOT COERCED

Brooks recognizes that this court, quoting from Lockhart v. State (1971), 257 Ind. 349, 274 N.E.2d 523, 526, observed in Bonner v. State (1973), Ind.App., 297 N.E.2d 867 that:

"* * * the fears of the appellant brought about by the surrounding circumstances cannot be considered the type of coercion which would require the trial court to permit withdrawal of the guilty plea. Under the circumstances the appellant was simply placed in a situation where he was required to make a judgment as to the best course of action for him to take. We cannot say that his decision to plead guilty constituted an involuntary situation simply because of the existence of overwhelming evidence and the threat of a life sentence."

See also Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. However, Brooks attempts to distinguish his situation on the grounds that he was crying during one portion of the hearing on the guilty plea.

During the extensive hearing, the court carefully explained the constitutional rights which Brooks was foregoing, assured himself that Brooks fully understood the nature of the penalty he would receive, and fully explored the facts surrounding the crime. During that hearing, the following exchange concerning Brooks' lack of composure took place:

'Q. Do you understand the charge to which you are pleading guilty?

'A. Two to twenty-one.

'Q. How is that?

'A. Two to twenty-one.

'Q. It is called Manslaughter, do you understand that?

'A. Yes.

'Q. And do you understand what the penalty is?

'A. Two to twenty-one.

'Q. Imprisonment for not less than two years nor more than twenty-one years, do you understand that?

'A. Yes, I do.

'Q. You have talked this matter over with your attorney, have you?

'A. Yes, I have.

'Q. And after talking to him I take it that you feel that this plea is in your own best interest, is that about right?

'A. Yes.

'Q. Are you all right now?

'MR. BOWMAN: Are you all right, John?

'A. Yes.

'Q. I want to tell you what is in this indictment, the first count of this indictment to which you are pleading guilty. This is something that I have to do, you understand that, don't you, Mr. Brooks?

'(At this time the defendant was crying.)

MR. BOWMAN: Can I have a moment, just a moment, to talk to him, Your Honor?

THE COURT: All right, then.

(At this time defense counsel talked to defendant.)

'Q. Mr. Brooks, you understand all I am trying to do is find out if you understand what you are doing?

'A. Yes, sir, I understand.

'Q. All right. Now I would like to go over Count One of this indictment, because this is the count under which you are pleading guilty, to make sure that you understand what you are doing here. Count One of this indictment says that on May the twenty-third, 1969, here in Marion County, Indiana that you killed John Herman King, a human being, with premeditated malice, and that you did it by choking and strangling him with your hands of which you then and there and thereby inflicted mortal wounds in and upon John Herman King, of which mortal wounds he then and there and thereby died. Now do you understand that you are pleading guilty to the crime of Manslaughter as covered by this charge? Do you understand that all right?

'A. Yes, I understand.

'Q. You have talked this matter over with your attorney, have you?

'A. Yes, I have.

'Q. And after talking it over with him, I take it that you feel this plea is in your own best interest, is that about right?

'A. Yes, I do.

'Q. Understanding everything that I have told you here this morning, Mr. Brooks, do you want to plead guilty?

'A. Yes, I do.'

While the above discloses that Brooks did cry at one point, it also demonstrates that the trial court delayed the proceedings to insure that Brooks was fully in control and understood exactly what was happening.

The record reveals that Brooks also cried the night of the crime and again when he was arrested the next evening. That Brooks is able to freely externalize his emotions is evident; but it does not require a finding that the tears were the result of coercion.

Brooks also asserts that, because he was charged with two counts of murder, he was threatened with double jeopardy, which threat coerced his guilty plea. Brooks offers no authority for his contention and we have found none. One charged with murder in two counts of the same indictment is not thereby subjected to double or former jeopardy. Thompson v. State (1972), Ind., 290 N.E.2d 724, cert. denied 412 U.S. 943, 93 S.Ct. 2788, 37 L.Ed.2d 404. Kokenes v. State (1938), 213 Ind. 476, 13 N.E.2d 524. The specific contention of Brooks is therefore without merit. We note in any event that in Brady v. United States, supra, the guilty plea was claimed to be coerced by the threat of a penalty which was later ruled to be unconstitutional. It is thus somewhat akin to the implication of Brooks' argument. The United States Supreme Court in Brady found nevertheless, that the plea had been voluntarily entered. Even though Brooks could not have been properly convicted and sentenced under both counts of the indictment (Thompson v. State, supra), we here conclude that the two count indictment did not constitute such a threat as to render Brooks' plea coerced.

Neither the existence of the two count indictment, nor possibility of suffering a greater penalty on conviction of first degree murder, nor the fact that Brooks broke into tears satisfies Brooks' burden of proving that his plea was coerced.

II

BROOKS FAILED TO PROVE THAT HIS GUILTY PLEA WAS NOT

KNOWINGLY AND INTELLIGENTLY ENTERED

It is well established that the Post-Conviction petitioner bears the burden of proof in establishing his right to relief. P.C. 1, § 5; Hoskins v. State (1973), Ind., 302 N.E.2d 499; Hughley v. State (1974), Ind.App., 307 N.E.2d 521.

The court has stated:

'A discussion of the knowledge which an accused must have in order to plead guilty involves three areas of concern:

I. The nature of the crime: does the accused understand the exact crime or crimes with which he is being...