Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

APPELLANT PRO SE:                               ATTORNEYS FOR APPELLEE:

FREDERIC WILLIAMS                               GREGORY F. ZOELLER
Pendleton, Indiana                              Attorney General of Indiana

                                                ELLEN H. MEILAENDER
                                                Deputy Attorney General
                                                Indianapolis, Indiana
                                                                                 FILED
                                                                              Oct 31 2012, 9:30 am

                              IN THE
                                                                                      CLERK
                    COURT OF APPEALS OF INDIANA                                     of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




FREDERIC WILLIAMS,                              )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )       No. 49A05-1110-PC-621
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                           Cause No. 49G20-0708-FA-158510


                                     October 31, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

GARRARD, Senior Judge
        Frederic Williams brings this appeal from the denial of his petition for post-

conviction relief. He raises two contentions: (1) error in admitting evidence that resulted

from a search warrant, and (2) fundamental error when his wife was compelled to testify

at his trial.

        The first contention concerning the search is waived since no argument addressing

it is presented. See Mallory v. State, 954 N.E.2d 933, 936 (Ind. Ct. App. 2011) (noting

that failure to present cogent argument in support of a claim results in waiver).

        In his argument addressing testimony by his wife, we believe that Williams is

actually attempting to assert what was known at common law as a testimonial privilege,

i.e., that a spouse was precluded from presenting any testimony. As our Supreme Court

pointed out in Glover v. State, 836 N.E.2d 414, 417-18 (Ind. 2005), Indiana does not

recognize that form of privilege. Instead, the spousal privilege in Indiana is provided by

Indiana Code section 34-46-3-1 (1998): “Except as otherwise provided by statute, the

following persons shall not be required to testify regarding the following communications

. . . Husband and wife, as to communications made to each other.” (Our emphasis).

        None of the wife’s testimony at trial touched upon confidential communications

between her and Williams, and this Court so held in Williams’ direct appeal.           See

Williams v. State, No. 49A02-0909-CR-875, slip op. at 3 (Ind. Ct. App. May 5, 2010),

trans. denied.




                                             2
       The fact that the post-conviction court also considered that any privilege might

have been waived is of no moment. On appeal this Court did not rely on waiver. Instead,

as noted, it relied on the fact that no confidential communications were testified to.

       It follows that the claim Williams now seeks to raise was already considered and

decided in his direct appeal. The doctrine of res judicata prevents it from being litigated

again. Ben-Yisrayl v. State, 738 N.E.2d 253, 259-60 (Ind. 2000).

       The denial of post-conviction relief is therefore affirmed.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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