Frederic Williams v. State of Indiana ( 2012 )

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MEMORANDUM DECISION - NOT FOR PUBLICATION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.
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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.
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