Dixon v. State, 172A30

• Decision Date: 26 December 1972
• Docket Number: No. 172A30,172A30
• Citation: 290 N.E.2d 731,154 Ind.App. 603
• Parties: Phillip DIXON, Jr., Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
• Court: Indiana Appellate Court

Page 731

290 N.E.2d 731

154 Ind.App. 603

Phillip DIXON, Jr., Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).

No. 172A30.

Court of Appeals of Indiana, Second District.

Dec. 26, 1972.

Harriette Bailey Conn, Public Defender of Indiana, for appellant

Theodore L. Sendak, Atty. Gen. of Indiana, Mark Peden, Deputy Atty. Gen., for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY--This is an appeal by petitioner-appellant, Phillip Dixon, Jr. (Dixon), from the denial of his Petition for Post-Conviction Relief, pursuant to P.C. Rule One, claiming, inter alia, misconduct of the trial judge and existence of evidence of material facts not previously presented at his court trial, thereby requiring vacation of his conviction.

We affirm.

CASE HISTORY--Dixon was charged by indictment on three counts of Sodomy, Rape and Aggravated Assault and was convicted by the trial court of Sodomy on March 28, 1969. The appeal taken by Dixon stated as grounds for reversal in substance that the evidence was insufficient to convict, the conduct proved was not covered by the Sodomy Statute, the Sodomy Statute is void for vagueness on Constitutional grounds and the Sodomy Statute violates due process.

On April 8, 1971, our Supreme Court affirmed the conviction, Dixon v. State (Ind.1971), 268 N.E.2d 84.

In response to the Public Defender's Petition to Withdraw As Pauper Counsel for Dixon because in the Public Defender's opinion the appeal from the Post Conviction Relief Proceeding is wholly frivolous, this court on June 21, 1972, handed down a Per Curiam Opinion, 284 N.E.2d 102, denying the Public Defender's Petition and directing the Public Defender to file an Amended Appellant's Brief within thirty days and granting the appellee thirty days thereafter for filing of its Brief. This was done.

This appeal from the Post Conviction Relief Proceeding (the Hearing herein) is therefore now considered on the merits.

FACTS--Relevant facts to this appeal and supporting Dixon's conviction are:

Dixon met Beverly Lewis (Beverly) for the first time on the night of June 20, 1968, in a tavern in the city of Indianapolis. She testified that at 2:00 A.M. they left the tavern and proceeded to her home for the purpose of inspecting an automobile located in her garage which Dixon indicated he might be able to repair. After gaining entrance to her home under the guise of leaving his name and telephone nupmber, Dixon forced her to submit to sexual intercourse and cunnilingus. Beverly, a married woman whose husband was in military service, testified that Dixon was unknown to her prior to June 20, 1968, the night of the attack.

At the trial, Dixon's defense relied primarily on the alibi testimony of four witnesses--his wife, Overton Jackson, Maurice Johnson, and Samuel Lambert--to substantiate his presence at a card game at the Dixon home during the hours when the attack took place. Overton Jackson, a coworker of Dixon at Indianapolis Chevrolet plant, testified only as to the card game at Dixon's home. He was not questioned about Beverly.

Dixon testified at the trial that he had known Beverly for approximately three months, had engaged in intercourse with her on previous occasions prior to June 20, 1968, but had not done so on the night in question.

He was represented at trial by private counsel.

Dixon's brief complained that certain questions and comments by the trial judge constituted misconduct on his part:

Direct Examination of Beverly Lewis

'Q. Do you know Phillip Dixon, Jr.?

A. Do I know him.

Q. Yes.

A. Not personally.

THE COURT: THAT's the right answer.' (R. 72, 1. 25)

and again to Miss Lewis on pages 74 and 75:

'THE COURT: Say this again. I got to go over that a little bit. That's the most important part of this case when you slumping (sic) over it. Let's go over that slowly. Who left with you?

A. Phillip Dixon left with me.

THE COURT: You said he, and I thought that was maybe Mr. Millen. (the Deputy Prosecutor)

A. No.

THE COURT: He came over to your table?

A. Yes.

THE COURT: And he asked you to go with him and he left with you, correct?

A. He asked me if I would take him . . . he said take him to 20 . . . I think it's about 22nd and Schriver, right there at the alley, and . . .

THE COURT: And you never knew him before then?

A. No, I just seen him, you know.

THE COURT: And you took him?

A. Yes, I took him.

THE COURT: Okay, State.'

and at pages 76 through 78:

'Q. About what time was it when you got at your Home?

A. Must have been around something till three, I imagine.

THE COURT: What time?

A. I imagine it was something till three.

THE COURT: Where was your husband?

A. He's Stationed in Camp LeJune, North Carolina.

THE COURT: And this was a date that you had?

A. No, it was not a date.

THE COURT: Well, I can't understand you lady. Maybe I'm hearing wrong or else you're not talking loud or talking . . .

A. No, the man, well, he was telling me . . .

THE COURT: You took him on Schriver? You wouldn't take me on Schriver.

A. Well, . . .

THE COURT: And you wouldn't let me sit at your table.

Q. Just go ahead and explain to the Judge what happened.

A. Yes.

THE COURT: I'm having trouble understanding.

A. The man told me that he worked at Chevrolet, and he does body work, and so he was asking me if I had a car, and I told him I had a '58 Chevy, which I did at the time, and he was asking me what all was wrong, and I tried to explain to the best of my knowledge, and he said well he would take a look at my car, and this is why he went home with me, supposedly.

THE COURT: At 2:00 o'clock in the morning?

A. Yes, huh-huh.

THE COURT: Okay.

A. And, . . .

THE COURT: It's kind of hard to believe, isn't it?

A. Huh?

THE COURT: Kind of hard to believe?

MR. MILLEN: Not in light of the rest of the testimony, Judge.

THE COURT: Huh? What'd you say?'

and at page 98, lines 17--18, upon direct examination of Police Officer Gerald Young:

'THE COURT: You'll never be chief. I take it back.'

Finally, on page 102 there was testimony by the police photographer, who had taken photographs of various rooms in Beverly's house including the furnace room:

'THE COURT: Take a picture of the defendant . . . or the prosecuting witness?

A. I don't know whether they did or not, sir. They took her to the hospital.

THE COURT: Isn't that the charge here instead of arson?

MR. MILLEN: No arson.

THE COURT: Well, I say it, but you're trying to prove an arson case here, or something. Malicious trespass. Let's try this case.'

Following his conviction, Dixon filed a pro se Petition For Post-Conviction Relief under Rule P.C. 1, (the Petition herein), alleging prejudice on the part of the trial judge and the existence of newly discovered evidence from one of Dixon's trial witnesses corroborating Dixon's earlier testimony that he had known Beverly prior to the evening of the alleged crime.

The Public Defender appointed to represent Dixon amended this Petition on November 4, 1970, so that it included an Affidavit by Overton Jackson swearing that he was aware that Dixon and Beverly had been engaged in an 'affair' approximately The State's Answer to Dixon's Petition was one of admission and denial. On September 22, 1971, the trial court conducted a hearing and subsequently denied the Petition after testimony was heard from Beverly, Overton Jackson, and Maurice Johnson--the latter two witnesses testifying to a two-year relationship between Dixon and Beverly.

two years prior to the time of Dixon's arrest and he had observed them together frequently during that time.

The State submitted no evidence and raised no defense or objection other than a request to overrule the Petition.

In the course of the Hearing the trial judge engaged in these exchanges with Dixon:

'Q. Mr. Dixon, just to make sure that I've covered this whole petition, which is quite long, is there anything you'd like to tell the Court, that we didn't cover on direct or cross examination, in support of your petition?

A. Well, not necessarily. . . .

Q. Now, this may be your last opportunity to testify, so, if you have anything, I'd appreciate it if you'd present it to the Court.

A. Well, there's a lot of things that's been taken place between me and Miss Beverly Lewis that never has been brought out.

Q. Now, Mr. Dixon, Phillip, I want to make sure you get a full and fair hearing here today. Now, if there is more information which you want to present, with the indulgence of the State and the patience of the Court, I'd like for you to present it right now.

A. Well, Mrs. Lewis * * *.

Q. Now, is there anything further, Mr. Dixon?

A. No, it isn't.'

and with reference to Beverly's testimony in the original trial that Dixon inserted a salt shaker into her vagina:

'THE COURT: But, you did see her, and you told me all about this, didn't you, at the time of trial? About the V.D., and everything else?

A. Right, sir.

THE COURT: Sure, I remember that. Remember the salt shaker, too?

A. Quite sure. You waived (sic) it in my face.'

ISSUES--The following issues are presented for review by this appeal:

ISSUE ONE. Did the trial court err in denying Dixon's Petition because no evidence of material facts not previously presented and heard was shown to exist?

ISSUE TWO. Did the trial court err in refusing to vacate Dixon's conviction on the basis that his first trial and the Hearing were not fair and impartial because of improper remarks of the trial judge amounting to misconduct?

ISSUE THREE. Was the trial court's denial of Dixon's Petition supported by sufficient evidence?

As to ISSUE ONE, Dixon contends, inter alia, that for purposes of post-conviction relief, the evidence sought to be presented does not have to be newly discovered, but needs only to be material and decisive in nature and must raise a strong presumption that it would probably change the results of the trial.

In response, the State contends the trial court properly found that Dixon waived the right to use this new evidence by his failure to...