Rector v. State

• Decision Date: 11 May 1979
• Docket Number: No. 1177S772,1177S772
• Citation: 270 Ind. 684,389 N.E.2d 279
• Parties: Joe RECTOR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 279

389 N.E.2d 279

270 Ind. 684

Joe RECTOR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 1177S772.

Supreme Court of Indiana.

May 11, 1979.

Harriette Bailey Conn, Public Defender, Kyle M. Payne, Deputy Public Defender, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Joe Rector (Petitioner) appeals from the denial of his second petition for post conviction relief. The events leading up to this unusual second petition are as follows:

In 1968, Joe Rector and David Lee were accused of threatening a business acquaintance, Bill Tarrant, with a sawed-off, double-barrel shotgun, forcing him into their automobile and making threats against his life. Consequently, they were charged with kidnapping and assault and battery with intent to kill. A year prior to Rector's trial, Lee pled guilty to the charge of assault and battery with intent to kill, sentence was withheld, and the kidnap charge was dismissed. At Rector's trial, Lee testified against Rector. Upon cross-examination by the defense, he denied knowledge of a "deal" with the prosecution and denied knowledge of the final disposition of the charges against him; however, he admitted that he had pled guilty to the charge of assault with intent to kill a year earlier, that he had not yet been sentenced, and that he had been subpoenaed as a witness for the State. He further testified that he did not know the disposition made of the kidnap charge against him but the trial judge took judicial notice that the charge had been dismissed by the State, and the jury was so informed. No further evidence was introduced upon this point. The jury returned a verdict of guilty to the kidnap charge, and Rector was sentenced to life imprisonment. His conviction was affirmed by this Court in 1971. Rector v. State, (1971) 256 Ind. 634, 271 N.E.2d 452.

In 1972, Rector filed his first petition for post conviction relief alleging, among other things, that the Prosecutor had allowed the false testimony of State's witness, Lee, to go uncorrected. A full hearing upon the merits was conducted and resulted in a judgment against Rector. An appeal was taken from this post conviction judgment but Rector's attorney did not present the "false testimony" issue. The post conviction judgment was affirmed. See, Rector v. State, (1976) 264 Ind. 78, 339 N.E.2d 551.

Thereafter, Rector filed a second petition for post conviction relief, this time alleging that he was denied the effective assistance of counsel during the appeal of his first post conviction petition, in that his attorney failed, in the first post conviction appeal, to assign the aforementioned false testimony issue. Following a hearing upon the merits, the trial judge held, among other things, that:

"12. That the testimony of the witness, David Lee, referred to above and heard by the jury was sufficient to apprise them of the requisite matters necessary to be considered in weighing said witness's testimony and assessing his credibility.

"13. That the minimal requirements of the State's duty to disclose the 'deal' with the witness, David Lee, were met by the evidence produced at trial and referred to above.

"14. That disclosure of any additional circumstances of the 'deal' made by the State with the witness, David Lee, would not have resulted in a different verdict.

"17. That while the testimony of the witness, David Lee, was somewhat confused at trial, the Petitioner has not proven by a preponderance of the evidence that said witness testified falsely or gave perjured testimony at said trial."

The case is presently before us upon Rector's appeal from the denial of his second petition for post conviction relief.

We first examine the merits of the underlying issue.

At the first post conviction hearing, Lee testified that when he testified against Rector he believed that he would receive favorable consideration from the State, in return for his testimony against Rector. That sentencing was still pending when he testified in Rector's trial lends credibility to the argument that he did have some agreement with the State. The Prosecutor's testimony did not support this argument, but neither did it directly refute it. We are, therefore, reluctant to...