Walker v. State

372 N.E.2d 739, 267 Ind. 649, 1978 Ind. LEXIS 619

• Court: Indiana Supreme Court
• Decided: February 28, 1978
• Docket: 776S221
• Status: Published

Opinions

Hunter, J.

The petitioner, Terry Wayne Walker, was tried for and convicted of murder for hire. His conviction was affirmed by this Court in Walker v. State, (1976) 265 Ind. 8, 349 N.E.2d 161.

Subsequently, on March 31, 1976, petitioner filed a petition denominated “Petition for Permission to File Second Belated and Supplemental Motion to Correct Errors” and a “Second Belated Motion to Correct Errors,” seeking a new trial. The ground for the motion was the discovery of an agreement between the prosecution and the principal state’s witness, Charlotte Hendricks. Accompanying the petition and the motion to correct errors were portions of a transcript of the trial of Charlotte Hendricks. Subsequently the state appeared and filed a transcript of the testimony of Douglas Knight, the deputy prosecutor, at the trial of Charlotte Hendricks. These transcripts were made a part of the record. No request for a hearing was made and the petitioner’s second belated motion to correct errors was overruled without a hearing.

In a post-conviction proceeding, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Lockhart v. State, (1971) 257 Ind. 349, 274 N.E.2d 523. The unsuccessful petitioner stands in the position of one appealing a negative judgment. It is only where the evidence is without conflict and leads to but one conclusion and the trial court has reached an opposite conclusion that the decision will be disturbed as being contrary to law. Hoskins v. State, (1973) 261 Ind. 291, 302 N.E.2d 499.

Although Charlotte Hendricks testified at her trial that she had been promised immunity, this is not an uncontradicted fact. Deputy Prosecutor Douglas Knight testified as follows:

“Thank you. I think what you are referring to is a tape recorded conversation that occurred between Gerald Baggerly, Robert Overby and perhaps other members of the Rose-ville, Michigan Police Department and the defendant, Charlotte Hendricks, wherein some peculiar statements were made to Charlotte Hendricks to the effect that if she told the truth to them and didn’t lie or anything like that that it would be better for her at a time when the Police Officers had no idea of the extent or nature of her involvement in this case. So, that information, in light of that, there were statements made to her that were in the nature or spirit of your question. Beyond that, when I met Charlotte Hendricks, I was troubled by that statement and made it rather clear to her that there were no promises and that she would be prosecuted and she indicated that she understood that and stated the same thing on several occasions so based on what she told me that she understood and that I had made myself clear to her it was my conclusion that there were no promises, there were no favors to be given her or any favors whatsoever and that she would be prosecuted to the fullest extent of the law.”

This testimony conflicts with that of Charlotte Hendricks. The trial court with all of the evidence before it resolved this issue against the petitioner. Where the evidence is conflicting, the trial court’s action must be upheld.

Where newly discovered evidence is urged as a basis for a new trial, the defendant has the burden of proving that the alleged newly discovered evidence must not be merely impeaching; it must be non-cumulative and must be likely to produce a different result. Jones v. State, (1974) 262 Ind. 159, 312 N.E.2d 856.

Here, the evidence most favorable to the judgment reveals only that promises of consideration were made by a police officer who had no authorization. When the prosecuting attorney discovered these promises he corrected the situation by clearly telling the witness that no immunity was being offered her. This was five months prior to her testimony. At Walker’s trial she testified that no promises were made to her. This was an untrue answer as to the unauthorized promises by the police officer that he would “do what he could for her.” At her own trial she testified that she had an agreement. She was, however, well aware that she was receiving no immunity and had been so advised by the prosecutor eighteen months prior to her trial. We are of the opinion that the trial court properly reviewed all the matters surrounding the allegations contained in the petition for post-conviction relief, and we find that the trial court’s ruling was justified by the record before it.

For all the foregoing reasons, there was no trial error and the judgment should be affirmed.

Judgment affirmed.

Givan, C.J. and Pivarnik, J., concur; DeBruler, J., dissents with-opinion in which Prentice, J., concurs.