Diggs v. State , 1981 Ind. LEXIS 968 ( 1981 )

PRENTICE, Justice.

Petitioners Diggs and Williams were convicted by a jury in the LaPorte Superior Court of delivery and conspiracy to deliver a controlled substance. Their convictions were affirmed by this Court. Diggs v. State, (1977) 266 Ind. 547, 364 N.E.2d 1176. They filed a petition for post-conviction relief pursuant to Ind.R.P.C. 1, which petition was denied following a hearing, on October 23, 1979. This appeal is from that judgment and assigns several issues, all of which relate to the alleged failure of the State to disclose its actions which, Petitioners charge, induced the State’s witness, Billy Ashley, to testify against them. Specifically, Petitioners alleged that, in consideration of his testimony, the prosecutor caused the witness to be released from prison on probation, paid him $325.00 from his personal funds, granted or obtained special treatment of several of the witness’ friends who were under criminal charges and made no disclosure of any of the foregoing. Petitioners maintain that under the totality of the circumstances, they were denied fundamental fairness and due process of law, in that they were deprived of the impeaching effect disclosure of such information would have had upon the testimony of the witness.

The State’s witness, Billy Ashley, testified at Petitioners’ trial concerning drug deals between himself and the appellants. He also testified that five months before the trial, he had been sentenced to imprisonment on a similar charge and that his sentence had been suspended about one week earlier. Upon cross-examination, it was disclosed that he had been advised by his attorney that he might get probation on his sentence in exchange for his testimony and that he had so informed defense counsel at an earlier date. Thus, we believe that it cannot be said that there had been no disclosure to the jury that the witness’ testimony had been induced by State action.

The petitioners’ trial began on September 15th and lasted through September 19th. Following the witness’ release, the trial deputy prosecutor paid him a total of $325.00 from his personal funds. Of this sum, $75.00 was paid on September 9th, $175.00 on September 12th, and $75.00 was paid on September 22nd. These payments, however, were not disclosed. At the post conviction hearing, the deputy acknowledged the payment and the non-disclosure. He did testify, however, that the payments were not for the witness’ testimony but were to enable him to relocate in the interest of his personal safety.

With regard to the petitioners’ allegations that the State, acting through the trial prosecutor, had agreed to and did, in fact, grant or obtain special considerations for certain of the witness’ friends, the trial prosecutor expressly denied them. Hence we find no merit to the claim that the post conviction judge’s finding to that effect cannot stand.

In post conviction proceedings, the petitioners bear the burden of proving their contentions by a preponderance of the evidence. Lamb v. State, (1975) 263 Ind. 137, 143, 325 N.E.2d 180, 183. The trial judge, as trier of the facts, is the sole judge of the weight of the evidence and the credibility of the witnesses. Rufer v. State, (1980) Ind., 413 N.E.2d 880, 882. Petitioners stand 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. Walker v. State, (1978) 267 Ind. 649, 651, 372 N.E.2d 739, 740.

This Court has long recognized that the State is under a continuing duty to disclose any inducements offered in exchange for a witness’ testimony. Williams v. State, (1980) Ind., 409 N.E.2d 571. Such testimony should be highly scrutinized by the jury or fact-finder, because a defendant may be found guilty solely upon the evidence of a witness who turns “state’s evidence.” Walker v. State, (1934) 206 Ind. 232, 189 N.E. 127, Payne v. State, (1924) 194 Ind. 365, 142 N.E. 651. The fact-finding body must therefore have before it all of the relevant circumstances that caused or induced the witness to testify as he did, including the rewards for such testimony.

The prosecutor’s constitutional duty to disclose exculpatory matter to the defense is governed by the United States Supreme Court opinion in United States v. Agurs, (1976) 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342, Richard v. State, (1978) Ind., 382 N.E.2d 899. As detailed in Agurs and Richard, our analysis must reflect an overriding concern for the defendants’ right 0o a fair trial as mandated by the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution. This Court has expressly adopted the Agurs material disclosure test, which states:

“It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is not justification for a new trial.” Agurs, 427 U.S. at 112, 96 S.Ct. 2402, 49 L.Ed.2d .355.

In our review of the evidence given at Petitioners’ trial, however, we found that the evidence of their guilt was sufficient, without resort to the testimony of the witness, Billy Ashley. Diggs v. State, (1977) 266 Ind. 547, 364 N.E.2d 1176. Additionally, inasmuch as the jury was aware of a bargain having been made with the State whereby the witness had received substantial benefits in return for his testimony, the post conviction judge was not precluded from finding that a more detailed disclosure, i.e. a disclosure of all benefits, would have given rise to a reasonable doubt as to the petitioners’ guilt.

Although we find no reversible error, this opinion should not be regarded as an approval of the State’s non-disclosure.

The judgment of the Trial Court is affirmed.

GIVAN, C. J., and DeBRULER and PI-VARNIK, JJ., concur. HUNTER, J., dissents with opinion.