Williams v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana

Danielle L. Gregory Rosemary L. Borek
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana
Ann M. Skinner
Special Assistant

Robert E. Lancaster
Special Assistant
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

EDWARD E. WILLIAMS, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 45S00-9701-PD-45
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Richard W. Maroc, Special Judge
Cause No. 45G02-9207-CF-182

February 23, 2000

SHEPARD, Chief Justice.

Edward Williams filed a petition for post-conviction relief
challenging his conviction and death sentence for the murder of three
people. The post-conviction court denied the petition and Williams
appeals. He presents six issues for our review:

1. Whether the post-conviction court erred in finding he had waived
the issue of trial counsel ineffectiveness;

2. Whether Williams was denied effective assistance of trial
counsel;

3. Whether Williams was denied effective assistance of counsel on
appeal;

4. Whether Williams’ death sentence was based on unreliable
information;

5. Whether prosecutorial misconduct occurred during the guilt and
penalty phases of Williams’ trial; and

6. Whether the appointment and assistance of a magistrate during
the proceedings was error.

Facts and Procedural History

The facts as they appear in our opinion from Williams’ direct appeal
are as follows:
In the early morning hours of June 19, 1992, defendant, armed
with a handgun, Jemelle Joshua, armed with a shotgun, and three others
set out to steal audio and video equipment from the basement of school
teacher Michael Richardson. Defendant and Joshua were admitted to
Richardson’s home and their three accomplices followed them in.
Besides Richardson, they encountered a number of children and adults,
including Richardson’s sister, Debra Rice, and Robert Hollins. While
defendant held his gun to Richardson’s head and Joshua held Rice,
their accomplices headed for the basement. Hollins intercepted them
and began to wrestle with one of them in the kitchen. Defendant
responded by shooting Hollins in the back.

The electronic equipment proved too difficult to remove and the
defendant ordered the occupants of the house to lie down. Rice attempted
to escape and Joshua shot her in the chest. As the invaders left the home,
defendant shot each of Hollins, Rice and Richardson once in the head
despite Richardson’s plea, “Please don’t kill me.” A few hours later,
defendant would tell his sister that he shot the victims so there wouldn’t
be any witnesses.

Williams v. State, 669 N.E.2d 1372, 1375-76 (Ind. 1996), cert. denied,
520 U.S. 1232 (1997).

On July 18, 1992, the State charged Williams with three counts
of murder in the perpetration of a robbery and three counts of murder.
The State later sought the death penalty on two of the counts.
Following trial, the jury found Williams guilty on all counts, but
could not agree on a sentencing recommendation. The trial court held
a sentencing hearing and imposed a death sentence.

Williams appealed his convictions and sentence, and we affirmed.
See Williams, 669 N.E.2d at 1390. He later filed a petition for post-
conviction relief, which the post-conviction court denied.

Standard of Review

Post-conviction procedures do not afford the defendant with a “super-
appeal.” Rather, they create a narrow remedy for subsequent collateral
challenges to convictions, which must be based on grounds enumerated in the
post-conviction rules. Ind. Post-Conviction Rule 1(1); Weatherford v.
State, 619 N.E.2d 915 (Ind. 1993). The petitioner bears the burden of
establishing his grounds for relief by a preponderance of the evidence. P-
C.R. 1(5); Weatherford, 619 N.E.2d at 917. If an issue was known and
available but not raised on direct appeal, it is waived. If it was raised
on direct appeal but decided adversely, it is res judicata. Williams v.
State, 706 N.E.2d 149, 153-54 (Ind. 1999). When the defendant appeals the
negative judgment of a post-conviction court, he must show that the
evidence as a whole “leads unerringly and unmistakably to a conclusion
opposite to that reached by the trial court.” Id. at 154 (quoting
Weatherford, 619 N.E.2d at 917).

Waiver of Ineffective Assistance of Trial Counsel

Williams claims that the post-conviction court erred in concluding
that he waived the issue of ineffective assistance of trial counsel by
failing to raise it on direct appeal. We agree. In Woods v. State, 701
N.E.2d 1208 (Ind. 1998), cert. denied, 120 S. Ct. 150 (1999), we held that
the claim of ineffective assistance of trial counsel is not waived if not
raised on direct appeal, but may be presented in post-conviction
proceedings. Id. at 1220. Because Williams did not raise the issue of
ineffective assistance of trial counsel on direct appeal, we address it.
See id. at 1222.

II. Ineffective Assistance of Trial Counsel

Williams asserts ineffective assistance of trial counsel on several
grounds. To prevail on a claim of ineffective assistance of counsel,
Williams must show that his counsel’s performance fell below an objective
standard of reasonableness as determined by prevailing professional norms,
and that the lack of reasonable representation prejudiced him. Rondon v.
State, 711 N.E.2d 506, 517 (Ind. 1999) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)).

A. Guilt Phase. Williams first claims that his trial counsel was
ineffective in failing to depose the State’s witnesses prior to trial. We
initially note that counsel’s failure to interview or depose State’s
witnesses does not, in itself, constitute ineffective assistance of
counsel. Id. at 519. Williams must identify what additional information
would have been discovered and how he was prejudiced by the absence of this
information. See id.

Williams claims that testimony from Jemelle Joshua and Jimichael
Parker, if further developed, would have revealed that he was intoxicated
during the crime and had used drugs beforehand. The defense of voluntary
intoxication requires a showing that “the intoxication was so severe as to
prevent [the defendant] from forming the state of mind necessary to commit
[the crime].” Id. (quoting Gambill v. State, 675 N.E.2d 668, 673 (Ind.
1996)).

According to Jemelle Joshua, during the morning and afternoon of June
18, 1992, he, Williams, and two other people smoked “sherm sticks,” or
marijuana cigarettes dipped in embalming fluid. (P-C.R. at 2930-32.) The
group smoked two “sherm sticks.” (P-C.R. at 2939.) Joshua also testified
that he and Williams consumed alcohol between 5 p.m. and 7 p.m. that
evening. (P-C.R. at 2938.) Jimichael Parker also testified that he
witnessed Williams smoking “sherm sticks” and drinking alcohol on the
afternoon of June 18th. (P-C.R. at 2247.)

Assuming that effective lawyering would have included deposing these
two witnesses, it is apparent that they would not have provided evidence
demonstrating that Williams was intoxicated at the time the crime occurred
or that his alleged intoxication was so severe as to prevent him from
forming the requisite intent to rob and murder.

The murders took place in the very early morning of June 19, sometime
after 1 a.m. (T.R. at 678, 914.) This was at least six or seven hours
after Williams was last seen consuming alcohol or drugs. Moreover, co-
conspirator Mark Harris testified that about midnight on the night of the
murders, he ran into Williams, Joshua, and Taylor. Williams told Harris
that “he had a hit” and that Michael Richardson “had a big screen
television” and “numerous V.C.R.s” in his home. (T.R. at 1158.) Williams
then asked Harris if he had a gun. Soon thereafter, Williams made a phone
call and the group went to Richardson’s home, where the robbery and murders
took place. On the way to Richardson’s home, Williams gave directions to
Lanita Charleston, who drove the group.

Williams’ sister Jeanette testified that Williams confessed to her
immediately following the murders and discussed the details of the murders
with her. (T.R. at 835-42.) Based on the foregoing, even if Williams did
consume alcohol and drugs on June 18th, the evidence would not have
supported a finding that he was so severely intoxicated as to prevent him
from forming the requisite intent.

Williams also claims that, had his attorneys spent more time
interviewing him, they would have discovered that he had serious “verbal
deficits” which would have affected trial strategy; namely, it would have
allowed his attorneys to argue that Williams lacked the capacity to be the
“ring leader” of the perpetrators. Whatever his lawyers might have been
able to argue about Williams’ leadership would certainly have been overcome
by the fact that he shot all three victims himself. (T.R. at 833-37, 842,
1176-90.) In light of this, whether Williams was the “ring leader” was of
little moment.

Lastly, Williams argues that his counsel could have impeached State’s
witnesses Earl Wilson and Jeanette Williams had they had the opportunity to
interview them before trial.[1] The record reflects, however, that these
witnesses were vigorously cross-examined and impeached on the stand. On
cross-examination, Jeanette Williams was questioned about her drug use and
about her hospitalization for depression. (T.R. at 852-54.) Likewise,
Earl Wilson was asked about his prior criminal history and incidents with
the law enforcement officials who questioned him in connection with this
case. (T.R. at 1062-63, 1066-67.) Thus, Williams’ counsel questioned
these witnesses regarding the same facts under which Williams now claims
they should have been impeached.

In light of the foregoing, Williams has not demonstrated how he was
prejudiced by his counsels’ failure to interview State’s witnesses before
trial.[2]

B. Penalty Phase. Williams next maintains that restrictions placed
on his attorneys during the penalty phase of trial rendered them
ineffective. On direct appeal, Williams argued that the trial court
committed reversible error when it restricted the performance of his court-
appointed mitigation expert and when it did not appoint a psychologist
until a few days before trial. Williams, 669 N.E.2d at 1382. We held that
no reversible error occurred. Id. at 1385-86. In so holding, we concluded
that “the defendant did present a substantial mitigation case” at the
penalty phase and at sentencing. Id. at 1384, 1385. In light of these
conclusions on direct appeal, and having concluded that no reversible error
occurred, we are unpersuaded by Williams’ claim as it fails to meet the
prejudice prong of our analysis. While there is always more to be
unearthed and argued, the “more” in this instance is not very persuasive.

Williams’ trial counsel 1) secured the assistance of a mitigation
expert for twenty-five hours and a psychologist who interviewed Williams
for 9 ½ - 10 hours; 2) presented testimony from the psychologist that
Williams had a “low normal” IQ, poor academic skills, and came from a “very
chaotic” and “abusive” family background; and 3) presented testimony of
Williams’ mother and aunt who explained in greater detail the abusive
nature of Williams’ family. The mitigating evidence presented at post-
conviction was essentially the same as that presented at sentencing.
Williams fails to establish what additional matters should have been
uncovered through additional investigation.[3]

Williams also claims that his counsel were ineffective for failing to
conduct additional preparation between the penalty phase and the sentencing
hearing. The substantial performance of counsel taken as a whole renders
unpersuasive that the Sixth Amendment was violated during this period.

III. Ineffective Assistance of Appellate Counsel

Williams claims: 1) his appellate attorney operated under a conflict
of interest, and 2) his appellate attorney was ineffective in failing to
raise the issue of insufficient funding of Williams’ mitigation specialist
on direct appeal.

The standard of review for a claim of ineffective assistance of
appellate counsel is identical to the standard for trial counsel; thus, we
apply the two-pronged Strickland test. Lowery v. State, 640 N.E.2d 1031,
1048 (Ind. 1994), cert. denied, 516 U.S. 992 (1995).

A. Conflict of Interest. Williams says his appellate counsel labored
under a conflict of interest because he was appointed to represent both
Williams and Jemelle Joshua. To prevail on this claim, Williams must
demonstrate that his counsel had an actual conflict of interest that
adversely affected counsel’s performance. Coleman v. State, 703 N.E.2d
1022, 1033-34 (Ind. 1998), pet. for cert. filed. The mere possibility of a
conflict is not sufficient to impugn a criminal conviction. Id. Moreover,
joint representation is not per se evidence of ineffective assistance.
Jones v. State, 536 N.E.2d 267, 272 (Ind. 1989). Rather, Williams must
show that his counsel’s representation was fully inadequate. Id.

Williams asserts that the joint representation made for ineffective
assistance because his appellate counsel did not focus on Joshua’s
involvement in the crime. This assertion fails on the prejudice prong.
Williams argues that the State sought the death penalty against him because
of his level of participation in the crimes. Even assuming this as true,
the State presented four aggravating circumstances to support Williams’
death sentence and none of these aggravators rested on Williams’ role as
the alleged “ring leader” of the crimes. See Williams, 669 N.E.2d at 1388.
Arguments on direct appeal regarding Joshua’s involvement, even if such
involvement was significant, would not have resulted in a reversal.

Williams has not demonstrated how his defense was adversely affected
by his counsel’s performance or by his counsel’s dual representation.
Thus, we cannot find his counsel ineffective on this ground.

B. Failure to Raise Funding Issue. Williams also asserts that his
appellate counsel was ineffective for failing to cite the trial court’s
denial of sufficient funds for a mitigation specialist.

On direct appeal, Williams’ counsel raised a more than adequate
argument concerning this issue. Our discussion of this issue included both
the temporal and financial limitations placed on the defense in this
regard. Williams, 669 N.E.2d at 1382-86. Indeed, counsel’s argument led
this Court to conclude that the trial court had erred in restricting the
time available to defense experts, although we determined that such error
was not reversible. Willaims points to nothing that appellate counsel could
or should have done differently to lead to a contrary conclusion.
Therefore, we fail to see how Williams was prejudiced by his counsel’s
failure to raise this issue.

Sentence Based on Unreliable Information

Williams next claims that his sentence should be reversed because the
sentencing judge relied upon information contained in a psychological
profile in deciding whether to sentence Williams to death.

As part of the pre-sentencing investigation, Williams completed a
psychological questionnaire, as Judge Letsinger requested. The
psychological questionnaire contained eighty questions asking for “yes” or
“no” responses. (P-C.R. at 2601-03.) The questions were taken from the
Minnesota Multiphasic Personality Inventory. Judge Letsinger testified
that he routinely asks defendants to complete this questionnaire in order
to assist him in determining their sentence, although he cannot recall
whether he used the questionnaire in sentencing Williams. (P-C.R. at 2576,
2580, 2591.) Defense counsel received a copy of the completed
questionnaire attached to Williams’ presentencing report; however, the
sentencing order does not refer to the questionnaire. (P-C.R. at 1507-09,
1512.)

Williams claims that Letsinger’s reliance upon the questionnaire
rendered his sentencing decision arbitrary and capricious. (Appellant’s
Br. at 53.) We have previously considered Judge Letsinger’s use of the
questionnaire in other capital cases. Williams, 706 N.E.2d at 162; Rouster
v. State, 705 N.E.2d 999, 1015-16 (Ind. 1999); Matheney v. State, 688
N.E.2d 883, 909 (Ind. 1997), cert. denied, 119 S. Ct. 1046 (1999). As in
those cases, we review here the aggravating and mitigating circumstances
absent the psychological questionnaire to determine whether the death
sentence was appropriate. Rouster, 705 N.E.2d at 1015.

In sentencing, the court found the following aggravating factors
present: 1) Williams intentionally killed Robert Hollins while committing
robbery; 2) Williams intentionally killed Debra Rice while committing
robbery; 3) Williams intentionally killed Michael Richardson while
committing robbery; and 4) Williams killed two or more persons.[4] (T.R. at
1962-63.) These aggravating factors relate directly to the facts of the
crime. There is no indication the trial court could have used the
psychological questionnaire in weighing these aggravating factors. See
Rouster, 705 N.E.2d at 1015.

The sentencing judge also found that certain mitigating factors
existed, but determined that the aggravating circumstances outweighed the
mitigating circumstances. (T.R. at 1961, 1963.) On direct appeal, we
concluded that the trial court properly imposed the death penalty.
Williams, 669 N.E.2d at 1390. Re-examining that decision, now, we reach
the same conclusion.

V. Prosecutorial Misconduct

Williams claims that the prosecutor committed misconduct by presenting
misleading evidence, withholding material and other exculpatory
information, and delaying a request for the death penalty. The State
counters that these claims are “doubly waived,” first because Williams did
not object to the alleged misconduct at trial, and second because Williams
knew of the misconduct but failed to raise it on direct appeal.
(Appellee’s Br. at 35.) We agree that some of the claims are waived;
others were unknown and unavailable to Williams at trial and on appeal and
thus available on post-conviction.

Williams’ specific claims are that the State:
1. presented misleading evidence of:
a. Williams’ sister’s drug use on the night she says he
confessed to her, and
b. the victims’ criminal history and character;
2. withheld material exculpatory evidence of:
a. Williams’ sister’s drug use,
b. the victims’ criminal history and character,
c. a witness’ criminal history,
d. a jail-house informant’s testimony that someone other than
Williams boasted about planning and killing one of the
victims,
e. the reward money paid to two informants, and
f. statements made by Williams and a witness; and
3. delayed charging the death penalty.

Williams certainly knew at trial and on direct appeal of any alleged
delay in the State’s decision to pursue the death penalty. That question is
thus not available in this collateral proceeding. See Benefiel v. State,
716 N.E.2d 906, 911 (Ind. 1999). Williams’ other claims assert that the
State withheld evidence from or mislead him. We therefore examine these
claims on the merits.

In reviewing a claim of prosecutorial misconduct, we “first must
determine, with reference to case law and the [Rules of Professional
Conduct], whether the prosecutor’s actions rose to the level of misconduct.
The next consideration is whether the misconduct, under all the
circumstances, placed the defendant in a position of grave peril to which
he should not have been subjected.” McChristion v. State, 511 N.E.2d 297,
302 (Ind. 1987). The gravity of the peril is determined by its probable
persuasive effect on the jury. Williams v. State, 715 N.E.2d 843, 847
(Ind. 1999).

A. Williams’ Sister’s Drug Use. Williams claims that the State
presented misleading evidence about his sister’s sobriety at the time he
confessed to her and about her hospitalization for depression following
that confession.

With regard to Jeanette Williams’ sobriety, Williams argues that,
while Jeanette testified at trial that she was not using drugs the day
Williams confessed, (T.R. at 852, 862, 872-73), her medical records
indicate that she was binging on crack cocaine daily around the time of the
confession, (P-C.R. at 3304-24). Williams further claims that the State
withheld those medical records detailing his sister’s crack cocaine
addiction. The State counters that there is no evidence to indicate that
the State had access to the records. Moreover, the State contends that
Jeanette would have released the records to either the prosecution or the
defense, had either side sought them. (R. at 3071.)

It appears uncontested that the State knew Jeanette was admitted to
the Tara Treatment Center shortly after the crime occurred. (Appellant’s
Br. at 60; see also Appellee’s Br. at 41.) Williams does not assert,
however, that the State discovered the records from the Center. (See
Appellant’s Br. at 60.) As Williams has not shown that the State knew of
the records, he has proven no prosecutorial misconduct on the basis that
the State withheld them. See Osborne v. State, 426 N.E.2d 20, 25 (Ind.
1981) (“There is not sufficient evidence that [the document] was, in fact,
in the prosecutor’s possession.”); Turnbow v. State, 637 N.E.2d 1329, 1333
(Ind. Ct. App. 1994) (“[T]he defendant must show . . . that the
prosecutor’s actions constituted misconduct by reference to the norms of
professional conduct . . . .”).

Moreover, while Jeanette reported “daily” binging on crack cocaine at
the time Williams confessed, (P-C.R. at 3308, 3310, 3323), she also
reported periods of abstinence for as long as two days, (P-C.R. at 3323).
She testified at trial that she did not use drugs on the day Williams
confessed. (T.R. at 879.) The prosecutor did not present misleading
evidence regarding Jeanette’s use of drugs.

Finally, the State did not present misleading evidence about
Jeanette’s depression. Williams argues that the prosecutor encouraged
Jeanette to testify that she was in a hospital for treatment of depression
that resulted solely from having to testify against her brother.
(Appellant’s Br. at 56.) He claims that the “truth of the matter is that
Jeanette had a long history of depression due to” a multitude of factors.
(Id.) In fact, the prosecutor twice asked Jeanette if she was in a
psychiatric hospital for treatment of depression that resulted in part from
testifying against her brother. (T.R. at 850, 878.) She answered yes to
both questions. (Id.) Again, Williams has proven no misconduct on this
basis.

B. Victims’ Criminal Records and Character. Williams argues that the
“prosecutor never disclosed Robert Hollins’ criminal history nor the
information that Michael Richardson sought sexual relations with teenage
boys.” (Appellant’s Br. at 62.)

Generally, evidence of a person’s character is inadmissible to prove
action in conformity therewith on a particular occasion. Brooks v. State,
683 N.E.2d 574 (Ind. 1997). An accused is permitted, however, to introduce
evidence of a victim’s character trait pertinent to the crime. Id. (citing
Ind. Evidence Rule 404(a)(2)). Michael Richardson’s sexual proclivities
are hardly relevant to the crime at issue in this case--robbery of
electronic equipment and murder of the witnesses. Moreover, Williams
himself recognized the inappropriateness of such evidence: “Victim
character evidence should not be considered in determining guilt, innocence
or appropriate punishment . . . .” (Appellant’s Br. at 57-58.) Regardless
of whether it was misconduct to keep such information from the defendant,
Williams was not subjected to grave peril, because the evidence was
inadmissible.

Williams’ claim that the State committed misconduct by presenting
evidence of Richardson’s good character is similarly without merit, as the
evidence did not subject Williams to grave peril. The State’s brief
description of Richardson seems unlikely to have affected the jury’s
determination of his guilt.

The same holds true for Robert Hollins’ criminal history. The State
did not commit misconduct by failing to inform Williams that robbery
charges were pending against Hollins at the time of his death. (P-C.R. at
3423, 3426-29.) While evidence of Hollins’ involvement in the aggressive
act of robbery may have been relevant had Williams claimed self-defense,
Brooks, 683 N.E.2d at 576, the facts show that Williams was motivated by
the desire to rob and to kill the witnesses, not by the need to protect
himself. Williams has proven no reversible error on this claim.

C. Witness’ Criminal History. Williams claims the State failed to
provide him with a full criminal history of co-conspirator Mark Harris, who
testified that Williams shot the victims. He argues that the history would
have provided a ground on which Williams could have impeached Harris at
trial.

Any misconduct in failing to furnish the defense with Harris’ criminal
record did not subject Williams to grave peril, as the evidence would have
been inadmissible for impeachment purposes. Indiana Evidence Rule 609(a)
provides: “evidence that the witness has been convicted of a crime or an
attempt of a crime shall be admitted but only if the crime committed or
attempted is (1) murder, treason, rape, robbery, kidnapping, burglary,
arson, criminal confinement or perjury; or (2) a crime involving dishonesty
or false statement.” Harris has been convicted of criminal trespass and
criminal mischief as class A misdemeanors, crimes not contemplated as
admissible under Rule 609(a). As the evidence was inadmissible, it could
have no effect on the jury’s decision-making process.

D. The Jail-House Informant. Williams asserts that the State
withheld “information in its files regarding a jail-house informant” who
telephoned Detective Branson and told him that he overheard two men,
neither of them Williams, discussing planning and killing one of the
victims. (Appellant’s Br. at 61-62.) Williams argues that the information
“could have been used to undermine the State’s theory that Williams planned
the crime.” (Appellant’s Br. at 62.)

An inmate who cannot remember who spoke about committing the crime
might fairly be recognized as having nothing pertinent to add. The
informant’s affidavit is remarkably ambiguous.[5] The State presented
overwhelming evidence that Williams not only participated in the robbery,
but that he shot the victims himself. Neither was his penalty based on the
aggravating circumstance that he alone planned the crimes. (See T.R. at
1961-62.) In light of the overwhelming evidence of Williams’ involvement
in the crimes and the fact that neither his guilt nor his penalty rested on
the notion that he was the “ring leader,” we think that the impact on the
jury of the jail-house information would have been slight. Williams was
not subjected to grave peril.

E. The Reward Money. Williams claims that the State failed to
disclose that Detective Branson secured Crime Stopper’s reward money for
two informants: Earl Wilson, who produced one of the weapons involved, and
Runny Gill, the boyfriend of Williams’ sister, who convinced Williams’
sister to testify at trial. He argues that “[e]vidence of Runny Gill’s
reward would have cast considerable doubt upon Jeanette Williams’ motives
for testifying and whether or not she was testifying truthfully. This
evidence would also have affected the jury’s determination of Earl Wilson’s
credibility and produced reasonable doubt as to Williams’ guilt.”
(Appellant’s Br. at 64.)

We recently addressed a remarkably similar issue in Harrison v.
State, 707 N.E.2d 767 (Ind. 1999), pet. for cert. filed. In Harrison, an
informant called the arson hotline to give information about a fire. The
informant applied for reward money and after trial the detective called the
head of the arson hotline to emphasize the importance of the informant’s
information and subsequent testimony. Id. at 789. Harrison argued that,
had the jury known about the reward request, the informant’s credibility
would have been damaged, thereby undermining either the trial court’s
confidence in the verdict, or the jury’s verdict or its recommendation of
the death penalty. Id.

We said that, to support a claim of prosecutorial misconduct on the
basis of withheld evidence, the allegedly withheld evidence must be
“material” to the defense. Id. Evidence is material only if there is a
reasonable probability that the result of the proceeding would have been
different, had the evidence been disclosed to the defense. Id. (citing
United States v. Bagley, 473 U.S. 667, 682 (1985)). A defendant must show
that the evidence could have reasonably put the whole case in such a
different light as to undermine confidence in the verdict. Id. (citing
Kyles v. Whitley, 514 U.S. 419, 435 (1995)). We held in Harrison that,
“Neither the application for a reward . . . nor the recommendation by the
detective is sufficiently probative to satisfy the materiality standard of
Bagley.” Id. Likewise, failure to disclose the informants’ rewards in
this case did not constitute prosecutorial misconduct sufficient to
undermine the integrity of the entire trial.

F. Pretrial Statements by Witness and Williams. Williams finally
claims that the State failed to turn over to the defense statements made by
Lanita Charleston and by Williams himself. He provides no explanation,
through his brief or via affidavits, of how these statements constituted
misconduct or placed him in grave peril. At most, he claims, “Disclosure
of this information would . . . have raised opportunities for the defense
to attack the thoroughness and good faith of the evidence.” (Appellant’s
Br. at 65.)[6]

As for Williams’ statement, Lanita Charleston says that she overheard
one side of a telephone call between Williams and a detective. (P-C.R. at
2382-83.) There is no indication that this informal phone conversation was
so weighty as to constitute a formal “statement” necessitating disclosure
to defense counsel.[7] Williams has not shown prosecutorial misconduct on
this basis.

Similarly, Williams has provided no evidence that Lanita Charleston’s
allegedly missing statement existed or, if it existed, that it placed him
in grave peril. His citation to the record in support of his claim
identifies a colloquy between the prosecutor, defense counsel and the judge
in which the existence of the statement and its inclusion in the State’s
discovery response are contested. (P-C.R. at 1587-88; Appellant’s Br. at
64.) If Williams elicited an affidavit from Lanita Charleston about the
phone conversation between Williams and a detective, (P-C.R. at 2382), he
certainly could have procured an affidavit detailing the contents of the
allegedly missing statement. Without such contents and a cogent argument
as to their probable persuasive effect on the jury, we conclude that
Williams has failed to prove that the omission of the statement in the
State’s discovery response subjected him to grave peril.

VI. Magistrate’s Involvement in Proceedings

After filing his petition for post-conviction relief, Williams moved
for change of judge. He requested a judge from outside Lake County and
also asked that Magistrate Page be barred from presiding in any part of
Williams’ post-conviction action. (P-C.R. at 252-58.) Judge Letsinger
granted the motion in part, recusing himself and appointing a special
judge, but denying the request for a judge outside of Lake County. (P-C.R.
at 242.) He overruled the objections to Magistrate Page’s involvement

Williams now contends that Magistrate Page’s involvement in his
proceedings was in error because 1) the Lake County Magistrate Act is
unconstitutional, 2) Magistrate Page was previously involved in Williams’
case, 3) Indiana Post-Conviction Rule 1(4) precluded Magistrate Page from
conducting an evidentiary hearing, and 4) Magistrate Page’s involvement in
the post-conviction phase violated Williams’ right to due process.

A. Constitutionality of the Lake County Magistrate. Williams asserts
that the magistrate’s involvement in his post-conviction proceedings
violated several provisions of the Indiana
Constitution.[8] We address each argument in turn.

1. Article III, Section 1 and Article VII, Sections 1 and 4. Williams
first contends that the statute adding a magistrate to the Lake Superior
court violates Article III, Section 1[9] and Article VII, Sections 1[10]
and 4[11] of the Indiana Constitution. We previously rejected similar
challenges in Matheney, 688 N.E.2d at 894-95. Matheney argued that Ind.
Code § 33-5-29.5-7.1, -7.2, which created the magistrate position, violated
Article III, Section 1 and Article VII, Sections 1 and 4 of the Indiana
Constitution.

We agreed with Matheney that the powers of an appointed magistrate are
limited to conducting preliminary proceedings and fact-finding hearings,
and that magistrates are not authorized to issue final orders. We
concluded, however, that the appointed magistrate there acted
appropriately, thus, the act was constitutional as it operated in that
case. Id. at 895. Therefore, in addressing Williams’ claim, we examine
whether Magistrate Page acted appropriately as a magistrate.

Here, Page conducted an evidentiary hearing on Williams’ petition and
assisted the special judge in creating findings of fact and conclusions of
law. Magistrate Page did not issue a dispositive order. Rather, Special
Judge Maroc denied Williams’ petition and both Judge Maroc and Magistrate
Page signed the final order.[12] (P-C.R. at 1227.) See Matheney, 688
N.E.2d at 895. There is no evidence that Judge Maroc issued this order in
an uninformed manner.

Moreover, Judge Maroc retained control over the proceedings, with
Magistrate Page’s assistance. For example, Judge Maroc continued to sign
documents and orders throughout Williams’ proceedings. (P-C.R. at 498,
503, 534, 560, 565, 780.) “[T]he magistrate here acted pursuant to Ind.
Code §§ 33-4-7-4, -7 &-8, to conduct the preliminary proceedings and the
hearing as a gatherer of facts.” Roche v. State, 690 N.E.2d 1115, 1134-35
(Ind. 1997). Because Magistrate Page acted as the statutes contemplate, we
conclude that the act was not unconstitutional as it operated in this case.

2. Article IV, Sections 22 and 23. Williams also contends that the
section providing a magistrate, Ind. Code § 33-5-29.5-7.1, violates Article
IV, Sections 22[13] and 23[14] of the Indiana Constitution.

Article IV, Section 22 prohibits local or special laws on subjects
falling into sixteen categories. Ind. Const. art. IV, § 22. Williams
contends that the section adding a magistrate is unconstitutional as a law
“[r]egulating the practice in courts of justice.” Id. We note that, in
determining whether a legislative classification is “special,” every
reasonable presumption must be indulged in favor of the constitutionality
of the statute. Tinder v. Music Operating, Inc., 237 Ind. 33, 142 N.E.2d
610 (1957).

Resolution of this issue begins with a determination of whether the
act adding a magistrate is a law “[r]egulating the practice in courts of
justice.” We conclude that it is not.

“Practice” has been defined as “[t]he procedural methods and rules
used in a court of law,” and a “practice act” has been defined as “[a]
statute governing practice and procedure in courts . . . usu[ally]
supplemented with court rules such as the Federal Rules of Civil
Procedure.” Black’s Law Dictionary 1191 (7th ed. 1999). Indiana Code § 33-
5-29.5-7.1 does not purport to regulate practice within Lake County courts.
Rather, it merely provides that judges of the criminal division may
appoint two magistrates to serve this division. Ind. Code Ann. § 33-5-29.5-
7.1 (West Supp. 1999). For this reason, the statute does not violate
Article IV, Section 22.[15]

Williams also claims that the section violates Article IV, Section 23
of our constitution. In analyzing a law under Section 23, we must first
determine whether the law is general or special. If the law is general, we
must then determine whether it is applied generally throughout the State.
If it is special, we must decide whether it is constitutionally
permissible. Indiana Gaming Comm’n v. Moseley, 643 N.E.2d 296, 299-301
(Ind. 1994).

Indiana Code § 33-5-29.5-7.1 is a special law because it provides for
the appointment of magistrates only in Lake County courts. Certain special
acts, however, are constitutionally permissible. If the subject matter of
an act is not amenable to a general law of uniform operation throughout the
State, the act is constitutional under Section 23. Moseley, 643 N.E.2d at
301.

Magistrate provisions have been established by our legislature to deal
with the rapid growth of litigation and cases in our courts, and to
supplement trial court resources. See John G. Baker, The Indiana Trial
Court System, 30 Ind. L. Rev. 233, 248-50 (1997). The Lake Superior Court
statute on the appointment of magistrates is not mandatory; rather, judges
may appoint magistrates to serve the courts when needed. Ind. Code Ann. §
33-5-29.5-7.1 (West Supp. 1999). In previously examining the Lake County
magistrate provisions under other articles of the Indiana Constitution, we
said that the statute was “reminiscent of the acceptable legislative
assistance” provided for in early acts allowing the appointment of
commissioners to aid and assist the Supreme Court in performing its duties.
See Matheney, 688 N.E.2d at 894-95.

The legislature periodically decides where the amount of litigation
requires more judicial personnel. For example, the chapter governing the
Floyd County Superior Court provides for the appointment of one magistrate
to serve the judges of the circuit, superior, and county courts within
Floyd County, Ind. Code § 33-5-18.1-15, while the chapter governing Lake
County allows the appointment of two magistrates to serve the criminal
division and two magistrates to serve the civil division. Ind. Code Ann. §
33-5-29.5-7.1 (West Supp. 1999).[16] Similarly, the 1999 General Assembly
added three judges to the Lake Superior Court. Ind. Code Ann. § 33-5-29.5-
27 (West Supp. 1999).

This all seems highly ordinary and constitutional. Larger counties,
or those with larger case dockets, have a need for the assistance of judges
and magistrates. Where the legislature is persuaded of this need, it
usually provides for it.

The legislature has enacted a general statute defining the authority
and compensation of magistrates. Ind. Code Ann. § 33-4-7-1 (West 1996).
It periodically assesses the need for additional judicial officers, usually
acting through the Commission on Courts[17] and examining such measures as
the Weighted Caseload Study.[18] This is an appropriate balancing of
general laws and special laws. See State v. Hoovler, 668 N.E.2d 1229, 1235-
36 (Ind. 1996). For this reason, we hold that the special law found in
Ind. Code § 33-5-29.5-7.1 is constitutional under Article IV, Section 23.

B. Magistrate Page’s Prior Involvement in Williams’ Criminal Trial.
Williams next contends that Page’s involvement in his post-conviction
proceeding was error because Page was previously involved in William’s
criminal trial and in the sentencing phase of his trial.

Magistrate Page was involved in some aspects of Williams’ trial and in
the trial of Williams’ co-defendants.[19] Thus, Williams argues,
Magistrate Page should have been removed from involvement in the post-
conviction phase of Williams’ proceedings. We disagree. Magistrate Page’s
involvement in Williams’ criminal trial was minimal and arose out of his
duties in assisting Judge Letsinger. The crux of Williams’ argument is
that, since Magistrate Page’s authority was derived from Judge Letsinger
and, since Judge Letsinger removed himself from the proceedings, Magistrate
Page should have likewise been removed from the proceedings. We rejected
an identical claim in Coleman, 703 N.E.2d at 1036, and we do so here.

C. Indiana Post-Conviction Rule 1, section 4. Williams also argues
that Indiana Post-Conviction Rule 1, section 4 precluded a magistrate from
presiding over the hearing on his petition for post-conviction relief.
Post-Conviction Rule 1, Section 4(g) provides: “If an issue of material
fact is raised [in the petition for post-conviction relief], then the court
shall hold an evidentiary hearing as soon as reasonably possible.”
Williams contends that the use of the word “court” in this provision
dictates that a judge, not a magistrate, preside over the evidentiary
hearing.

Indiana Code § 33-4-7-4(11) provides that a magistrate has the power
to “[c]onduct an evidentiary hearing or trial.” This power applies to any
magistrate appointed by a court expressly authorized by statute to appoint
magistrates. Ind. Code Ann. § 33-4-7-1 (West 1996). Magistrates assist
judges in matters, but do not “become” judges unless they are specifically
sitting as special judges. The presiding judge retains control of the
proceedings, although a magistrate may assist. Thus, the statute does not
contradict the Post-Conviction Rule. Although the Post-Conviction Rule
uses the word “court,” we reiterate that Judge Maroc presided over the post-
conviction proceedings, with Page’s assistance, and signed the final order
disposing of Williams’ petition. Thus, we conclude that “the court” held
the evidentiary hearing, with the assistance of a magistrate, as permitted
by rule and statute.

D. Due Process. Lastly, Williams contends that, by presiding over
the post-conviction hearing, Magistrate Page performed a judicial function,
thus violating the due process guarantees of the federal and state
constitutions. See U.S. Const. Amend. XIV, § 1; Ind. Const. Art. I, § 12.
The same claim was raised in Matheney and in Roche and was decided against
those petitioners. Roche, 690 N.E.2d at 1134; Matheney, 688 N.E.2d at 894-
96. As we have previously stated, Magistrate Page conducted the hearing
pursuant to Ind. Code §§ 33-4-7-4, -7 & -8. The hearing provided Williams
the opportunity to present evidence and to file briefs supporting his
petition. (R. at 781-889, 1217-27, 1264-3557.) There was no deprivation
of due process or due course of law.

Conclusion

We affirm the judgment of the post-conviction court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Specifically, Williams claims that his counsel could have shown
that “Jeanette was an incredible witness due to her drug problems” and that
Wilson was coerced into testifying by law enforcement officers involved in
Williams’ case. (Appellant’s Br. at 32.)
[2] Williams also asserts that his counsel was ineffective for failing
to call Jemelle Joshua and Che Grafton stating that ”they would have spoken
to counsel.” (Appellant’s Br. at 31.) Williams does not describe what
additional testimony these witnesses would have given to help his case.
[3] Moreover, we determined on direct appeal that “the defendant
presented effectively to the jury during the penalty phase and to the court
at sentencing all those aspects of defendant’s background, character or
record and those circumstances of the offense that could have been
proffered as a reasonable basis for imposing a sentence other than death.”
Williams, 669 N.E.2d at 1385 (emphasis added).

[4] The court noted, however, that no weight would be assigned to this
factor against the mitigating factors. (T.R. at 1963.)
[5] He averred: “I told [Detective Branson] that [two inmates] were
talking about the killing of a Gary school teacher and that one of them was
telling the other one that he had heard that he had planned and directed it
all and that the another one[sic] was involved . . . .” (P-C.R. at 5121.)
[6] He also claims that the “suppression of these statements was in
violation of Williams’ constitutional right to due process.” (Appellant’s
Br. at 65.) Because he has provided no cogent argument or citation to
relevant authority, he has waived this claim. See Ind. Appellate Rule
8.3(A)(7).
[7] Moreover, an excellent source of information about whatever was
said was Williams himself.
[8] Williams also challenges the Magistrate Act under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Aside from a one sentence statement that the Act violates these
provisions, however, Williams fails to develop this contention. Under
Indiana Appellate Rule 8.3(A)(7), failure to provide a cogent argument with
adequate citation to authority waives the issue.

[9] “The powers of the Government are divided into three separate
departments; the Legislative, the Executive including the Administrative,
and the Judicial; and no person, charged with official duties under one of
these departments, shall exercise any of the functions of another, except
as in this Constitution expressly provided.” Ind. Const. art. III, § 1.

[10] “The judicial power of the State shall be vested in one Supreme
Court, one Court of Appeals, Circuit Courts, and such other courts as the
General Assembly may establish.” Ind. Const. art. VII, § 1.

[11] “The Supreme Court shall have no original jurisdiction except in
. . . supervision of the exercise of jurisdiction by the other courts of
the State . . . .” Ind. Const. art VII, § 4.

[12] Under Ind. Code § 33-4-7-7, magistrates may not enter a final
appealable order unless sitting as a judge pro tempore or a special judge.
[13] “The General Assembly shall not pass local or special laws . . .
regulating the practice in courts of justice.” Ind. Const. art. IV, § 22.
[14] “In all the cases enumerated in the preceding section and in all
other cases where a general law can be made applicable, all laws shall be
general, and of uniform operation throughout the State.” Ind. Const. art.
IV, § 23.
[15] Under the Indiana Constitution of 1816, the legislature regularly
passed special statutes on a variety of topics, leading to the adoption of
Article 4, Sections 22 and 23 of the Indiana Constitution of 1850. Indiana
Gaming Comm’n v. Moseley, 643 N.E.2d 296, 299 (Ind. 1994). Perusal of some
special laws and laws governing local practice suggests the nature of the
problem that Sections 22 and 23 sought to address. See, e.g., an Act
authorizing the Hancock County Circuit Court to empanel a grand jury to
hear charges against John Hays, ch. LXXXI, 1835 General and Local Laws of
Ind. 174 (1834); an Act authorizing the sale of the real estate of the
deceased Joseph Swank, ch. LXXXIV, 1835 General and Local Laws of Ind.
(1834); and an Act authorizing Margaret Hurd to file a bill for a divorce
in Martin County Circuit Court, and to regulate the proceedings thereon,
ch. XC, 1849 Local Laws of Ind. 129 (1850).
[16] In contrast, the chapter governing the Harrison Superior Court
makes no provision at all for the appointment of magistrates. Ind. Code
Ann. § 33-5-19.8-1-11 (West 1996).
[17] Ind. Code Ann. § 33-1-15-1 (West 1996) (establishing Commission
on Courts).
[18] “The Weighted Caseload Study released by the Indiana Judicial
Center in January, 1997 is a useful tool, providing baseline information
comparing caseloads by attributing weights to various types of cases and
average judicial time devoted to each activity.” Indiana Commission on
Courts, 1998 Annual Report 11 (1998).
[19] This involvement included: issuing probable cause orders against
Williams and his co-defendants, holding Williams’ initial hearing,
presiding over a pre-trial hearing in Jemelle Joshua’s case, and presiding
over a plea hearing in Che Grafton’s case. We note that each of these acts
is within the magistrate’s powers in assisting criminal division judges
under Ind. Code § 33-4-7-4.