Walker v. State
Decision Date | 28 February 1978 |
Docket Number | No. 776S221,776S221 |
Parties | Terry Wayne WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
Court | Indiana Supreme Court |
John G. Bunner, Evansville, for appellant.
Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.
The petitioner, Terry Wayne Walker, was tried for and convicted of murder for hire. His conviction was affirmed by this Court in Walker v. State, (1976) Ind., 349 N.E.2d 161.
Subsequently, on March 31, 1976, petitioner filed a petition denominated "Petition for Permission to File Second Belated and Supplemental Motion to Correct Errors" and a "Second Belated Motion to Correct Errors," seeking a new trial. The ground for the motion was the discovery of an agreement between the prosecution and the principal state's witness, Charlotte Hendricks. Accompanying the petition and the motion to correct errors were portions of a transcript of the trial of Charlotte Hendricks. Subsequently the state appeared and filed a transcript of the testimony of Douglas Knight, the deputy prosecutor, at the trial of Charlotte Hendricks. These transcripts were made a part of the record. No request for a hearing was made and the petitioner's second belated motion to correct errors was overruled without a hearing.
In a post-conviction proceeding, the petitioner has the burden of establishing his grounds for relief by a preponderance of the evidence. Lockhart v. State, (1971) 257 Ind. 349, 274 N.E.2d 523. The unsuccessful petitioner stands in the position of one appealing a negative judgment. It is only where the evidence is without conflict and leads to but one conclusion and the trial court has reached an opposite conclusion that the decision will be disturbed as being contrary to law. Hoskins v. State, (1973) 261 Ind. 291, 302 N.E.2d 499.
Although Charlotte Hendricks testified at her trial that she had been promised immunity, this is not an uncontradicted fact. Deputy Prosecutor Douglas Knight testified as follows:
This testimony conflicts with that of Charlotte Hendricks. The trial court with all of the evidence before it resolved this issue against the petitioner. Where the evidence is conflicting, the trial court's action must be upheld.
Where newly discovered evidence is urged as a basis for a new trial, the defendant has the burden of proving that the alleged newly discovered evidence must not be merely impeaching; it must be non-cumulative and must be likely to produce a different result. Jones v. State, (1974) 262 Ind. 159, 312 N.E.2d 856.
Here, the evidence most favorable to the judgment reveals only that promises of consideration were made by a police officer who had no authorization. When the prosecuting attorney discovered these promises he corrected the situation by clearly telling the witness that no immunity was being offered her. This was five months prior to her testimony. At Walker's trial she testified that no promises were made to her. This was an untrue answer as to the unauthorized promises by the police officer that he would "do what he could for her." At her own trial she testified that she had an agreement. She was, however, well aware that she was receiving no immunity and had been so advised by the prosecutor eighteen months prior to her trial. We are of the opinion that the trial court properly reviewed all the matters surrounding the allegations contained in the petition for post-conviction relief, and we find that the trial court's ruling was justified by the record before it.
For all the foregoing reasons, there was no trial error and...
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