Frederic Williams v. State of Indiana (NFP)
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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 Pendleton, Indiana GREGORY F. ZOELLER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana FILED Oct 31 2012, 9:30 am IN THE COURT OF APPEALS OF INDIANA FREDERIC WILLIAMS, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) ) No. 49A05-1110-PC-621 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COURT The Honorable Steven R. Eichholtz, Judge Cause No. 49G20-0708-FA-158510 October 31, 2012 MEMORANDUM DECISION - NOT FOR PUBLICATION GARRARD, Senior Judge CLERK of the supreme court, court of appeals and tax court Frederic Williams brings this appeal from the denial of his petition for postconviction 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. 3
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