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
Ann M. Skinner
Robert E. Lancaster
SUPREME COURT OF INDIANA
EDWARD E. WILLIAMS, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 45S00-9701-PD-45 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
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;
6. Whether the appointment and assistance of a magistrate during the proceedings was error.
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.
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 Richardsons home, where the robbery and murders took place. On the way to Richardsons 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 States witnesses Earl Wilson and Jeanette Williams had they had the opportunity to interview them before trial. See footnote 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 States witnesses before trial. See footnote
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. See footnote
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.
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 counsels 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 counsels representation was fully inadequate. Id.
Williams asserts that the joint representation made for ineffective assistance because his appellate counsel did not focus on Joshuas 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 Joshuas 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 counsels performance or by his counsels 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 courts 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, counsels 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 counsels failure to raise this issue.
Williams specific claims are that the State:
presented misleading evidence of:
Williams sisters drug use on the night she says he confessed to her, and
the victims criminal history and character;
withheld material exculpatory evidence of:
Williams sisters drug use,
the victims criminal history and character,
a witness criminal history,
a jail-house informants testimony that someone other than Williams boasted about planning and killing one of the victims,
the reward money paid to two informants, and
statements made by Williams and a witness; and
delayed charging the death penalty.
Williams certainly knew at trial and on direct appeal of any alleged delay
in the States 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 prosecutors 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 Sisters Drug Use. Williams claims that the State presented
misleading evidence about his sisters 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 sisters 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. (Appellants Br. at 60; see
also Appellees Br. at 41.) Williams does not assert, however, that the State
discovered the records from the Center. (See Appellants 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 prosecutors possession.); Turnbow
v. State, 637 N.E.2d 1329, 1333 (Ind. Ct. App. 1994) ([T]he defendant must
show . . . that the prosecutors 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 Jeanettes use
Finally, the State did not present misleading evidence about Jeanettes 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. (Appellants 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. (Appellants Br. at 62.)
Generally, evidence of a persons 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 victims
character trait pertinent to the crime. Id. (citing Ind. Evidence Rule 404(a)(2)).
Michael Richardsons 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 . . .
. (Appellants 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 Richardsons good
character is similarly without merit, as the evidence did not subject Williams to
grave peril. The States brief description of Richardson seems unlikely to have
affected the jurys 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 jurys 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. (Appellants Br. at 61-62.) Williams argues that the information could have been used to undermine the States theory that Williams planned the crime. (Appellants 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 informants affidavit is
See footnote 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 Stoppers 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 Gills 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 jurys determination of Earl
Wilsons credibility and produced reasonable doubt as to Williams guilt. (Appellants Br.
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 informants information and subsequent testimony.
Id. at 789. Harrison argued that, had the jury known about
the reward request, the informants credibility would have been damaged, thereby undermining either
the trial courts confidence in the verdict, or the jurys 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. (Appellants Br. at 65.)
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. See footnote Williams has not shown prosecutorial misconduct on this basis.
Similarly, Williams has provided no evidence that Lanita Charlestons 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 States discovery response are contested. (P-C.R. at 1587-88; Appellants 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 States discovery response subjected him to grave peril.
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 See footnote and Article VII, Sections 1See footnote and 4See footnote 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.
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.
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 Pages 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 See footnote and 23See footnote 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. Blacks 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. See footnote
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.
Gaming Commn 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).
See footnote Similarly, the 1999 General Assembly added three
judges to the Lake Superior Court. Ind. Code Ann. § 33-5-29.5-27 (West
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 See footnote and examining such measures as the Weighted Caseload Study.See footnote 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 Pages Prior Involvement in Williams Criminal Trial. Williams next contends that Pages involvement in his post-conviction proceeding was error because Page was previously involved in Williams 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. See footnote Thus, Williams argues, Magistrate Page should have been removed from involvement in the post-conviction phase of Williams proceedings. We disagree. Magistrate Pages 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 Pages 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 Pages 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.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.