Broshears v. State

• Decision Date: 10 December 1992
• Docket Number: No. 87A01-9203-CR-58,87A01-9203-CR-58
• Citation: 604 N.E.2d 639
• Parties: Kenneth BROSHEARS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 639

604 N.E.2d 639

Kenneth BROSHEARS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 87A01-9203-CR-58.

Court of Appeals of Indiana,

First District.

Dec. 10, 1992.

J. William Bruner, Boonville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BAKER, Judge.

Defendant-appellant Kenneth Broshears appeals his conviction and sentence for criminal recklessness, a Class D felony. ¹ His three-year sentence was enhanced by an additional 20-year term because he was found to be an habitual offender under IND.CODE 35-50-2-8. Broshears advances two arguments on appeal:

I. Whether the trial court was required to disqualify the prosecutor on the underlying charge because the prosecutor had previously represented Broshears.

II. Whether the trial court's refusal to give the habitual offender jury special verdict forms requires remand for resentencing.

FACTS

Around midnight on July 17, 1990, three youths contacted the Chandler City police department and reported that an intoxicated man on a moped had waved a handgun at them. Officer Lockyear investigated. When he arrived on the scene, he asked the man, Broshears, whether Broshears had a gun. Broshears replied, "Do you see one?" Officer Lockyear did not, but frisked Broshears for their mutual safety. No gun was found.

Despite Officer Lockyear's command to remain in place, Broshears stood up, walked to the side of the road, dragged his moped from a nearby ditch, and mounted it. Officer Lockyear told him to stop, but was ignored. Broshears then refused to display his hands when ordered to do so.

Not only did Broshears have a gun, he fired it twice in Officer Lockyear's direction before Officer Lockyear could defend himself. One of his return volleys struck Broshears in the leg. Broshears tried to flee on his moped, but his wound or his intoxication or some combination of the two factors hindered him. He threw his gun into the weeds and remained still until Officer Lockyear's back-up arrived. When it did, Broshears gave up. Broshears's drunken initiation of this gunfight led S. Anthony Long, the local prosecutor, to charge Broshears with attempted murder. Broshears's six prior felony convictions led Long to charge Broshears with being a habitual offender.

Because Long had represented Broshears in a 1974 shooting associated with the first of Broshears's felony convictions, and because that conviction was, in part, the basis of the habitual offender accusation, Broshears asked the trial court to disqualify Long and appoint a special prosecutor in Long's stead. Following a hearing on the matter, the trial court agreed Long should not participate in the habitual offender proceedings, but denied Broshears's motion to replace Long with a special prosecutor on the underlying attempted murder prosecution.

The jury acquitted Broshears of the attempted murder charge but convicted him of criminal recklessness, a lesser-included Class D felony. Long's replacement then argued Broshears was an habitual offender,

                submitting evidence that Broshears had been convicted of six prior felonies:  two Class Ds, one Class C, and three thefts occurring before October 1, 1977, the effective date of the current felony classification system. 2  Broshears asked the trial court to give the jury special verdict forms because he thought it possible the jury might rely solely on his Class D felony convictions, thus subjecting him to only an eight-year enhancement rather than a 30-year enhancement.  The trial court denied the motion, and the jury returned a general verdict form reading, "We, the jury, find the Defendant, Kenneth Broshears, to be an habitual offender."   Record at 1000.  The trial court enhanced Broshears's sentence by an additional 30 years, and, pursuant to IND.CODE 35-50-2-8(e), reduced the 30-year enhancement by ten years.  Broshears appeals
                

DISCUSSION AND DECISION

I. Disqualification

Broshears first argues the trial court erred by refusing to disqualify Long from the underlying attempted murder prosecution. He contends State ex rel. Meyers v. Tippecanoe County Court (1982), Ind., 432 N.E.2d 1377, supports his position.

In Meyers, the defendant sought to have both the local elected prosecutor, John Meyers, and his staff disqualified because Meyers had previously represented the defendant in a case serving, in part, as the basis for the habitual offender accusation. Our supreme court, citing Canons 4, 5, and 6 of the Code of Professional Responsibility, ³ observed "[t]he precepts of professional ethics forbid participation of a lawyer in the prosecution of a criminal case if, by reason of his professional relationship with the accused, he has acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith." Meyers, supra, at 1378. The court concluded:

In this case, it appears that nothing in Meyers's representation of the accused in the two prior theft cases would have any relation to the present theft case. However, the habitual offender charge is based upon the same two prior theft cases in which Meyers was involved. Therefore, there is a substantial relationship involved. Although it is true, that the fact of defendant's prior convictions are a matter of public record, we cannot say without speculation that the prosecutor's knowledge of those prior cases will not actually result in prejudice to the defendant. The public trust in the integrity of the judicial process requires us to resolve any serious doubt in favor of disqualification. The trial court properly held that Meyers must be disqualified in this case.

Id. at 1379. Additionally, "[t]he petitioner must demonstrate that he has been prejudiced by the prosecutor's previous representation." Jaske v. State (1990), Ind.App., 553 N.E.2d 181, 184, trans. denied.

The Meyers holding is more limited than Broshears wishes it to be, however. In Meyers, our supreme court held that "where the habitual offender charge against the defendant was based upon two prior theft cases in which the prosecutor had represented the defendant, the prosecutor had to be disqualified and a special prosecutor appointed in his place." Sears v. State (1983), Ind., 457 N.E.2d 192, 195. The concern in Meyers is the appearance of impropriety raised by an habitual offender prosecution based on convictions in which the prosecutor had represented the defendant. This concern is not present in Broshears's case because Prosecutor Long was, in fact, disqualified from the habitual offender proceedings against Broshears.

Alternatively, Broshears argues Long should have been disqualified from the attempted murder prosecution because the facts surrounding Long's 1974 representation of Broshears were similar to the 1990 attempted murder prosecution. Specifically he argues Long could have used a modus operandi theory against Broshears based on the similarity. ⁴

Even assuming the extrinsic evidence from the 1974 incident is admissible for the 1990 attempted murder prosecution, we must reject Broshears's argument for at least two reasons. The Meyers standard, it will be recalled, is that if by reason of his 1974 representation of Broshears, Long acquired a knowledge of facts upon which the 1990 attempted murder prosecution was predicated, or acquired a knowledge of facts which were closely interwoven with the attempted murder prosecution, Long should have been disqualified.

First, and most fundamentally, we observe the rule in Meyers is designed, in part, to protect confidential information. Citing Meyers, the supreme court in Sears, supra, at 195, noted that "[a] special prosecutor is necessary only when the accused can demonstrate that, by reason of his former confidential relationship with the prosecutor, the prosecutor has acquired special knowledge of the facts being litigated, or facts which are closely associated therewith." Although Long may have originally learned of Broshears's proclivity to shoot people from his professional relationship with Broshears, the 1974 facts Broshears now claims could give rise to a modus operandi theory necessarily lost their "special" or "confidential" status when Broshears, through his statement to the police, publicly admitted them. See Fluty v. State (1947), 224 Ind. 652, 71 N.E.2d 565 (defendant who took witness stand and testified as to his recollections concerning confidential communications with his attorney "destroyed the confidential nature of the communications" and by that act waived the right to confidentiality). Because Broshears points to no information Long could have used that retained its confidential status, the confidentiality rationale is inapplicable.

Second, it is plain the 1990 attempted murder prosecution was not predicated on any facts Long may have gleaned from his 1974 representation of Broshears. Instead, the 1990 prosecution was based on an entirely new set of facts having nothing to do with the previous incident. There is no indication Broshears would not have been prosecuted for the attempted murder of Officer Lockyear had the 1974 incident never occurred; in no sense, then, can it be said the 1990 prosecution was predicated on, that is, based on or founded on, Broshears's 1974 behavior.

We acknowledge that coincidentally, facts from the 1974 incident could have been used against Broshears in the 1990 prosecution. Unless the 1974 facts predicate the 1990 prosecution, however, or are closely interwoven with it, the rule of Meyers does not apply and no special prosecutor is required. The facts of the earlier incident are demonstrably not "closely interwoven" with the 1990 prosecution. Although arguably relevant to prove intent, motive, or purpose, Broshears's 1974 behavior simply was not "closely interwoven" with the 1990 prosecution, as shown by the fact that Long made no mention of the 1974 incident whatsoever during the 1990 prosecut...