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03/10/88 STATE INDIANA v. GARLAND HICKS

Filed: March 10, 1988.

STATE OF INDIANA, APPELLANT (RESPONDENT BELOW),
v.
GARLAND HICKS, APPELLEE (PETITIONER BELOW).



Appeal from the Lake County Superior Court, Criminal Div, RM.4, The Honorable James L. Clement, Judge, Cause No. 4CR-65-485-263

Staton, J., Miller, J., Concurs. Hoffman, J., Dissents With Opinion.

Author: Staton

STATON, J.

The State of Indiana appeals the decision of the post-conviction relief hearing court, which granted relief to Garland Hicks by vacating his conviction of murder and granting him a new trial. The PCR court sua sponte raised and concluded that a reasonable doubt existed as to Hicks' guilt.

The issues before us are:

I. Whether the PCR court erred in taking judicial notice of its own records?

II. Whether the PCR court erred in considering the credibility of witness Allen, a matter merely mentioned in the PCR petition but relevant to the issues it contained?

III. Whether the PCR court erred and exceeded its authority in concluding there is a reasonable doubt as to the petitioner's guilt?

IV. Whether the court's implied finding of ineffective counsel was erroneous?

Affirmed.

On September 22, 1978, appellee Garland Hicks was indicted for two counts of murder, along with co-defendants Aurelius J. Allen, Dirk Webster, and O. D. Webster. All were named on one indictment. Although Allen's statements supplied the basis for the indictment, Allen had made five (5) different statements, only naming Hicks as an accomplice in his last two statements.

In exchange for a consolidated sentence of six years, Allen agreed to testify against Hicks. Later he was told he must testify against Webster as well. At Hicks' trial in December of 1978, Allen's statements provided the evidence necessary for conviction, and, under cause number 4CR-202-978-865, Hicks was convicted of one count of murder and acquitted of the second count. He received a sentence of fifty years. Hicks appealed his conviction directly to the Indiana Supreme Court; they affirmed it.

Hicks then filed a petition for post-conviction relief consisting of two paragraphs: (1) ineffective counsel, and, (2) the denial of due process because he did not receive a copy of the grand jury minutes, which, according to Hicks, would have assured him of his right to cross-examination. The post-conviction relief court granted Hicks' petition.

The PCR court took judicial notice of Allen's testimony in the subsequent trial of Webster, Hicks' co-defendant. Although Webster's trial took place in March of 1979, its cause number was identical to Hicks' -- 4CR-202-978-865, and the trial occurred before the same Judge and in the same courtroom. At Webster's trial, Allen testified that he had no recollection of the murders nor of making any statements which implicated any of the co-defendants. Webster was convicted, but the Indiana Supreme Court reversed, finding that Allen's prior statements implicating his co-defendants were to be admitted only for impeachment purposes. At Webster's retrial, Allen testified as he did at Hicks'; a conviction resulted which the Indiana Supreme Court affirmed. However, the Seventh Circuit reversed on the grounds of double jeopardy and Webster was released.

Under Indiana law, the post-conviction relief Judge, as the trier of fact, is the sole Judge of witness credibility; therefore, we will disturb his decision only if it is contrary to law, i.e., if the evidence is without conflict and can lead only to the Conclusion opposite that reached by the post-conviction relief court. Lahrman v. State (1986), Ind.App., 501 N.E.2d 1109, 1112.

I.

Judicial Notice

In arguing that the post-conviction relief court erred in taking judicial notice of the records of Webster's trial, the State assumes that those records were outside of the cause before the court. Thus, in so arguing, the State overlooks the fact that "a court judicially knows its own records." Brown v. State (1983), Ind.App., 458 N.E.2d 245, 250, citing Apple v. Greenfield Banking Co. (1971), 255 Ind. 602, 266 N.E.2d 13.

In Young v. State (1980), Ind.App., 413 N.E.2d 1083, we spoke of what "own records" can include:

"[I]t is settled, of course, that the courts, trial and appellate, take notice of their own respective records in the present litigation, both as to matters occurring in the immediate trial, and in previous trials or hearings," McCormick, Evidence, 2d Ed. § 330 at 766 (1972). (emphasis added.)

". . . the court will take judicial notice of earlier determinations involving the same parties which are vital to the determination of the present action, . . . . (Citation omitted.)

Young, supra, at 1086.

We applied that rule in Atkins v. State (1986), Ind.App., 499 N.E.2d 1180. Atkins dealt with one of four co-defendants who were charged with conspiracy to commit theft. In Atkins, we had to determine whether Atkins had agreed with his co-defendants to commit theft. In addressing this question, we referred to Lewis v. State (1986), Ind.App., 493 N.E.2d 822, an earlier case which found that Atkins' co-defendants had never agreed with Atkins to commit theft. Based on the Lewis decision, we reversed Atkins' conviction, reasoning that if the co-defendants had not agreed with Atkins, then Atkins could not have agreed with them. Thus, Atkins demonstrates that, under certain circumstances, it is possible to judicially notice prior determinations.

In this case, the post-conviction relief court's decision is challenged because it judicially recognizes records in the same way in which we noticed records in Atkins. Yet, as in Atkins, the records of Webster's trial are part of the Hicks' court's "own records." The indictment simultaneously named Hicks, Allen, D. Webster, and O. D. Webster as co-defendants for the same counts of murder; both Hicks' and Webster's trial proceeded under cause number 4CR-202-978-865, before the Honorable James L. Clement; and in both trials, prior co-defendant Allen was the key witness. Furthermore, in Hicks' case, Webster's trial was an "earlier determination involving the same parties which was vital to the determination of the present action," as stated in ...


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