Casterlow v. State

• Decision Date: 18 June 1975
• Docket Number: No. 2--473A99,2--473A99
• Citation: 164 Ind.App. 506,329 N.E.2d 631
• Parties: Gary CASTERLOW, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 631

329 N.E.2d 631

164 Ind.App. 506

Gary CASTERLOW, Appellant, v. STATE of Indiana, Appellee.

No. 2--473A99.

Court of Appeals of Indiana, Second District.

June 18, 1975.

Harriette Bailey Conn, Public Defender of Indiana, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Eric L. Wyndham, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

Appellant Casterlow's robbery conviction was affirmed on appeal. ¹ He now appeals from the denial of his petition for postconviction relief, contending the evidence shows both that he was not adequately represented by counsel at trial and that there exists evidence of material facts not previously presented and heard. Finding no merit in either contention, we affirm.

During the presentation of evidence at the hearing on Casterlow's petition for post-conviction relief, the public defender moved the court to

'take notice of its own trial record in this case. I believe that the trial record shows that six hundred and seventy dollars was introduced into evidence by the police by the prosecutor in this case.'

The court pointed out that the transcript of that evidence was in the Supreme Court and that 'since I can't take judicial notice of the record . . . that I don't in fact have, I don't know how I can do what you ask me to do.' Finally, however, after both parties had rested the court said:

'I have been looking through and I found something, namely: the Supreme Court opinion and in discussing the evidence, it shows that six hundred dollars was found in a restroom, so I will sustain your motion and take judicial notice.'

It seems clear from this colloquy that the PCR judge was asked to take judicial notice only of the fact that 'six hundred and seventy dollars' was introduced into evidence at the robbery trial and that he did just that after reading the Supreme Court opinion which is now found in Casterlow v. State (1971), 256 Ind. 214, 267 N.E.2d 552. It appears that the public defender at the hearing was satisfied with the extent to which the judge limited his cognizance of the criminal trial evidence. No claim of error in that regard is noted in the motion to correct errors or in Casterlow's brief. But the argument made in his brief invites this court to take a much broader and more detailed notice of the criminal trial evidence than was requested of the PCR court. He asks that we do so for the purpose of assisting Casterlow both in sustaining his burden (under Wilhoite v. State (1971), 255 Ind. 599, 601, 266 N.E.2d 23) of showing that the evidence not presented at the trial was such as to raise a strong presumption that it would probably change the result if a new trial were granted, and in sustaining his burden (under Blackburn v. State (1973), Ind., 291 N.E.2d 686) of showing that the trial taken as a whole was a mockery of justice. Which is to say that we are invited to consider evidence not considered by the PCR court in order to decide whether that court reached the wrong result when it denied post-conviction relief. If we did so we would be invading the province of the trial court whose duty and prerogative it is to weight the evidence and find the facts. Wood v. Northwestern Insurance Co. (1871), 46 N.Y. 421.

If Casterlow and his counsel (the state public defender) wished this evidence to be considered in the decision of this case it was their responsibility not only to ask the PCR court to do so but to make it possible for the PCR court to do so. Had Casterlow made available to that court the transcript of the prior trial testimony and pointed out what part or parts thereof were relevant to his petition for post-conviction relief and had the court failed or refused to consider it, that could possibly have constituted reversible error. Judicial notice is not judicial knowledge and when the case of the party with the burden of proof depends upon the court taking judicial notice of a fact not within his judicial knowledge, that party must furnish the court with the means to bring it within his knowledge. 'To say that a court will take judicial notice of a fact, whether it be an event or custom or a law of some other government, is merely another way of saying that the usual forms of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. 5 Wigmore, Ev. § 2567; Thayer, Preliminary Treatise on Ev. pp. 277, 308. But the truth of course is that judicial notice and judicial knowledge are far from being one. The law is not so vain as to make pretence of their identity. To the contrary, a court that is left without knowledge of a fact after exploring to the full every channel of information must needs decide against the litigant who counts upon the fact as an essential of his claim.' Shapleigh v. Mier (1937), 299 U.S. 468, 475, 57 S.Ct. 261, 264, 81 L.Ed. 355, 113 A.L.R. 253, 257. See also 29 Am.Jur.2d 56, Evidence § 17, and annotation 113 A.L.R. 258, 259.

'There are many things that courts would notice if brought before them that beforehand they do not know. It rests with counsel to take the proper steps, and if they deliberately omit them, we do not feel called upon to institute inquiries on our own account.' Quong Wing v. Kirkendall (1912), 223 U.S. 59, 64, 32 S.Ct. 192, 193, 56 L.Ed. 350, 352. (Opinion by Justice Holmes.)

Almost all of the evidence at the PCR hearing related to certain bank accounts maintained by Casterlow and his wife. Both testified that around the end of October Casterlow received $1,000 from a Christmas Club account. A bank employee produced records showing that on December 6 Casterlow withdrew $1,237.33 from their savings account, leaving a balance of $2,100.00. He and his wife both testified that the $670 found on him the day after the robbery (which took place on December 23) was the remainder of the Christmas Club money. They both testified that his trial counsel did not present that evidence to the court even though both urged him to do so.

As to evidence on other points, Casterlow, describing why he felt his trial lawyer did not properly present the issue of no probable cause for his arrest, described a pre-arrest confrontation type identification process. He made no other reference to the pre-trial identification procedure or to the testimony of the identifying witnesses. He also made a passing reference to 'my jacket and my hood and a magazine' that had been taken from his car and which he said the prosecution had on a table in the courtroom. When the robber was described as wearing a jacket of a different color the prosecutor moved the things from the top of the table to the floor under the table and did not introduce them into evidence.

Casterlow's wife testified that at the trial she

'heard two witnesses sit in this chair and one of them said he had processed hair and a mustache...