Frederic Williams v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 31, 2012
• Docket: 49A05-1110-PC-621
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

APPELLANT PRO SE: ATTORNEYS FOR APPELLEE:

FREDERIC WILLIAMS GREGORY F. ZOELLER Pendleton, Indiana Attorney General of Indiana

ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana FILED Oct 31 2012, 9:30 am

IN THE CLERK COURT OF APPEALS OF INDIANA of the supreme court, court of appeals and tax court

FREDERIC WILLIAMS, ) ) Appellant-Petitioner, ) ) vs. ) No. 49A05-1110-PC-621 ) STATE OF INDIANA, ) ) Appellee-Respondent. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Steven R. Eichholtz, Judge Cause No. 49G20-0708-FA-158510

October 31, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge Frederic Williams brings this appeal from the denial of his petition for post-

conviction relief. He raises two contentions: (1) error in admitting evidence that resulted

from a search warrant, and (2) fundamental error when his wife was compelled to testify

at his trial.

The first contention concerning the search is waived since no argument addressing

it is presented. See Mallory v. State, 954 N.E.2d 933, 936 (Ind. Ct. App. 2011) (noting

that failure to present cogent argument in support of a claim results in waiver).

In his argument addressing testimony by his wife, we believe that Williams is

actually attempting to assert what was known at common law as a testimonial privilege,

i.e., that a spouse was precluded from presenting any testimony. As our Supreme Court

pointed out in Glover v. State, 836 N.E.2d 414, 417-18 (Ind. 2005), Indiana does not

recognize that form of privilege. Instead, the spousal privilege in Indiana is provided by

Indiana Code section 34-46-3-1 (1998): “Except as otherwise provided by statute, the

following persons shall not be required to testify regarding the following communications

. . . Husband and wife, as to communications made to each other.” (Our emphasis).

None of the wife’s testimony at trial touched upon confidential communications

between her and Williams, and this Court so held in Williams’ direct appeal. See

Williams v. State, No. 49A02-0909-CR-875, slip op. at 3 (Ind. Ct. App. May 5, 2010),

trans. denied.

2 The fact that the post-conviction court also considered that any privilege might

have been waived is of no moment. On appeal this Court did not rely on waiver. Instead,

as noted, it relied on the fact that no confidential communications were testified to.

It follows that the claim Williams now seeks to raise was already considered and

decided in his direct appeal. The doctrine of res judicata prevents it from being litigated

again. Ben-Yisrayl v. State, 738 N.E.2d 253, 259-60 (Ind. 2000).

The denial of post-conviction relief is therefore affirmed.

Affirmed.

FRIEDLANDER, J., and MAY, J., concur.