Sonny Davis v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 12 2018, 10:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Sonny Davis Curtis T. Hill, Jr.
Westville, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sonny Davis, July 12, 2018
Appellant-Petitioner. Court of Appeals Case No.
49A05-1710-PC-2328
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-0208-PC-211427
Brown, Judge.
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[1] Sonny Davis (“Davis”) appeals the denial of his petition for post-conviction
relief. He raises a number of issues which we consolidate and restate as:
I. Whether he was denied effective assistance of trial and
appellate counsel; and
II. Whether he is entitled to a new trial due to newly discovered
evidence.
We affirm.
Facts and Procedural History
[2] Davis dated Christina Light for a year and a half. Davis v. State, No. 49A05-
0303-CR-140, slip op. at 2 (Ind. Ct. App. December 18, 2003), trans. denied. On
August 8, 2002, Light went to stay with her aunt after having a problem with
Davis. Id. Davis told Light’s aunt Light was a “lying bitch” and he would
come over and “beat the heck” out of her. Id. Light’s aunt became afraid of
Davis and asked Light to leave her home. Id. Light went to the house of her
cousin Amy Heady (“Amy”) and asked Amy’s boyfriend, Kevin Milliner, to
say that Light was not at home if Davis called. Id. Davis called several times,
and both Amy and Milliner told Davis that Light was not home. Id. Sometime
later, Davis went to Amy’s residence, walked in despite being told Light was
not present, found Light hiding under a bed, pulled her out by her hair, hit her
on her back with a drill, held her down, repeatedly hit her on the head with a
hammer, kept asking Light for the keys to the truck they co-owned, found the
keys in Light’s pocket, continued hitting Light, and eventually left. Id. at 2-3.
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[3] The State charged Davis with attempted murder, burglary as a class A felony,
robbery as a class A felony, aggravated battery as a class B felony, criminal
confinement as a class B felony, two counts of battery as class C felonies,
intimidation as a class D felony, criminal recklessness as a class D felony,
domestic battery as a class A misdemeanor, battery as a class A misdemeanor,
and interference with reporting a crime as a class A misdemeanor. Id. at 3. The
State later alleged Davis was an habitual offender. Id.
[4] At trial, the prosecutor asked Indianapolis Police Officer Joseph Wells to
describe his conversation with Light on her porch, and Davis’s trial counsel
objected on the basis of hearsay. The court overruled the objection and noted
Davis’s continuing objection. Officer Wells testified that Light told him that
her ex-boyfriend came over to the residence and that Davis kicked in the door
of the residence, entered the residence with a man named Antwan who held a
gun on everybody, and started beating her with his fist.
[5] The prosecutor asked Paramedic Lisa Warren on direct examination what
Light had said to her about how she had been injured, and Davis’s counsel
objected on the basis of hearsay. The court overruled the objection to the extent
it related to the identity of Light’s attacker. Warren testified that Light “did not
say a name – she just said ‘he did it,’” and when asked who “he” was in
relation to Light, Warren answered: “A boyfriend.” Trial Transcript Volume I
at 62.
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[6] A hearing was held outside the presence of the jury during which the court
asked Light if she understood that Davis would like to call her as a witness in
his case-in-chief, and Light indicated she understood. The court invited Davis’s
counsel to ask Light questions, and Light’s counsel stated that Light had Fifth
Amendment rights that supersede her ability to answer any questions from
Davis’s counsel or from the State. The court stated: “Why don’t we let her hear
what the questions are and then you can advise her. What would your
questions be, [Davis’s counsel].” Id. at 187. In response to questions by
Davis’s counsel, Light stated that “[s]ome guy” with the street name of Beedaw
struck her with a hammer, that she did not know his name, and that she told
the police that Davis injured her because she wanted to see him locked up
because she “found him cheating on [her] with somebody else.” Id. at 188.
Light’s counsel stated that he was advising her not to answer these questions
because it would lead to charges being filed. The court asked Light if she
understood that the State had filed charges for obstruction of justice and that
the State intended to prosecute her on those charges based upon the testimony
she gives, and Light answered affirmatively. Light indicated that she did not
want to testify and that she was going to exercise her Fifth Amendment
privilege. Upon further questioning by Davis’s counsel, Light stated that she
recognized a letter that she wrote to the prosecutor that was marked for
identification purposes as Defendant’s Exhibit A. Light’s counsel stated that
Light was not competent, that Light had already invoked her rights under the
Fifth Amendment twice since they began, and, after further discussion,
indicated that Light was exercising her Fifth Amendment privilege.
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[7] After the State rested, Davis’s counsel moved for a directed verdict on some of
the counts, and the court granted the motion with respect to Count XII and
denied the request with respect to the other counts. Davis’s counsel called
Light, and the court questioned her outside the presence of the jury and in the
presence of Light’s attorney. The court found Light to be a competent witness.
Upon questioning by the court, Light indicated she understood that if she
testified, there was the possibility she could give statements that would
incriminate her in pending criminal cases, that she wanted to testify, and that
she acknowledged her attorney’s advice was to exercise her Fifth Amendment
privilege. The prosecutor explained that Light potentially faced charges of
obstruction of justice as a class D felony, assisting a criminal as a class C felony
for attempting to procure statements from Amy and Milliner, and perjury as a
class D felony for each falsehood for “potential penalties up to maybe fifteen
years.” Trial Transcript Volume II at 344. The prosecutor also stated that
Light should be advised that she was involved in Child Protective Services
matters with her children and that the prosecutor did not know what effect, if
any, any convictions would have on those hearings. When asked by the court if
she wanted to testify, Light answered: “Yeah – I mean – all I want to say is he
didn’t do it.” Id. The court stated that Light wished to testify. The prosecutor
asked if Light understood that she would be answering the prosecutor’s
questions as well, and, when asked by the court, Light indicated that she
understood. Light then stated “can I plead the Fifth . . . .” Id. at 345. When
asked by the court if she wanted to “plead the Fifth,” Light answered
affirmatively. Id. After further discussion, the court asked Light if she wished
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to exercise her Fifth Amendment Privilege, and Light answered “Fifth
Amendment.” Id. at 347.
[8] Davis’s counsel then indicated that he would like to offer into evidence
Defendant’s Exhibit A, which was the statement Light had previously testified
was a true and accurate copy of the statement she submitted to the State. After
some discussion, the court did not admit Defendant’s Exhibit A.
[9] Davis testified that he had been dating Light for about a year and a half and
was involved romantically with her on August 8, 2002. He testified that he had
a date with Toya on August 8, 2002, he could not remember Toya’s last name,
and Light came over at dinner time and became upset due to Toya’s presence.
He stated that Light paged him, they talked on the phone, Light asked him for
money, he felt there was something wrong from the tone of her voice, he went
to check on her, he discovered blood all over the house, Light told him to leave,
and he left and went to 1814 Rural. On cross-examination, Davis indicated
that State’s Exhibit 6 reflected that thirty calls were placed from his residence to
Barbara Heady’s residence and close to ten calls were placed to Amy’s
residence, that he stated earlier that he was at his residence with Toya that day,
and that Toya was not present at the trial.
[10] The court admitted a Petition to File Belated Notice of Alibi Defense filed by
Davis on October 4, 2002, as State’s Exhibit 33. The petition alleged that Davis
was at the Rural Inn, located at 2725 E. Michigan Street in Indianapolis, at
11:40 p.m. on August 8, 2002, the date and time that the offense occurred.
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Davis had also filed a list of witnesses including Shanisha Crenshaw, Johnny
Davis, and Melissa LNV. On cross-examination, Davis indicated that he had
just testified that he was not at the Rural Inn and that none of the witnesses
listed in his petition to file a belated notice of alibi were present at the trial.
[11] The jury was unable to reach a verdict on the charge of attempted murder and
acquitted Davis of battery. Davis, slip op. at 3. He was convicted of the nine
other counts. Id. The trial court sentenced him to fifty years for burglary,
twenty years for aggravated battery, and a thirty-year habitual offender
enhancement on the aggravated battery conviction. Id.
[12] On direct appeal, Davis challenged his burglary conviction and argued that the
trial court’s instruction regarding the element of “breaking” violated his due
process rights under the Fourteenth Amendment to the United States
Constitution and Article 1, Section 19 of the Indiana Constitution. Id. at 4. He
also argued that the instruction contained a mandatory presumption. Id. at 6.
We agreed that a portion of the instruction defining “breaking” was incorrect,
held that the erroneous language was harmless, and affirmed. Id. at 5-6.
[13] On March 26, 2015, Davis filed an amended petition for post-conviction relief
alleging that his trial and appellate counsel were ineffective and new evidence
existed which would likely result in a different result on retrial. On May 12,
2015, the court held an evidentiary hearing at which Davis was represented by
counsel. James Denning testified that he witnessed “Johnny striking the lady in
the head with the hammer” on August 8, 2002, and that the man’s full name
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was “Johnny House.” Post-Conviction Transcript Volume II at 18. When
shown Petitioner’s Exhibit A, a booking information sheet listing an
individual’s “Name” as “DAVIS JOHNNY,” “Person Name” as “JOHNNY
HOUSE,” and “Aliases” as “DAVIS, JOHNNY,” Petitioner’s Exhibit A,
Denning stated that person was Johnny House. He testified that he and Johnny
were hanging out that day when “Tanisha” picked up him and Johnny and
took them to a house which Johnny entered and stayed for five or six minutes.
Post-Conviction Transcript Volume II at 21. He testified that a woman ran out
of the house screaming, “Help, help. They were fighting. Help break up the
fight.” Id. at 23. According to Denning’s testimony, he then saw Johnny
striking a lady in the head numerous times with a hammer, Johnny ran out
screaming, “I got the keys, I got the keys, let’s go,” he and Johnny entered a
black Chevy S-10, and Johnny dropped him off at his home. Id. at 24.
Denning testified that he had not seen Johnny since then until he was walking
through a unit of the Wabash Valley Jail in 2012 when he saw Johnny and said,
“Johnny, what’s up,” and the man responded, “I’m not Johnny.” Id. at 25.
Denning identified Davis as the person he ran into in prison. He acknowledged
that he was currently serving a sentence for attempted robbery.
[14] Amy testified that she had previously testified that Davis had beaten Light. She
indicated that the photograph of the person in Petitioner’s Exhibit A looked like
Davis. Davis’s counsel asked Amy if it was possible that the person she
believed back in August 2002 to be Davis could have been Johnny House, the
prosecutor objected, and the court sustained the objection. Milliner stated that
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he testified at trial that he witnessed Davis and that he saw Davis for two or
three minutes. He also testified that the person in Petitioner’s Exhibit A looked
like Davis.
[15] Tanisha Whiteside testified she knew Denning in 2002, Denning came to her
with Johnny, asked her to drop them off, and told her he had to “go over there
and handle some things.” Id. at 42. She testified that she dropped them off,
Denning and Johnny went into the home at the same time, she heard yelling
and talking, and she pulled away. She testified that she realized that she had
information that would have been important to Davis’s situation “just last year”
when she was at a family dinner where Davis’s sister was present and she saw
pictures of Davis. Id. at 46.
[16] Davis testified that he did not have any way of knowing that Denning was at
the scene, he was segregated from Light, and had no phone and mail privileges,
and did not know Amy or Milliner. He also testified that his brother was in
prison in Arizona and it was not likely that his brother would be brought in as a
witness and admit that he did this offense.
[17] On March 8, 2016, the court held a hearing at which Davis appeared pro se.
Davis called Light as a witness, the prosecutor asked to know the theory for
which Davis wished to call Light, and Davis stated in part that Light would
testify that “it wasn’t me, she tried to tell them that it wasn’t me, that she was
threatened the whole time.” Id. at 62. The prosecutor then objected, asserted in
part that it would provide the court with “a certified copy of a conviction under
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– of [Light] for obstruction of justice that occurred after this for events arising
directly out of this case in which she pled guilty to obstruction of justice.” 1 Id.
at 63. The court stated that Light’s statement was already on the record when
the trial court “went through all of this” and sustained the prosecutor’s
objection. Id. at 65.
[18] The State presented the testimony of Kristina Korobov who stated that she was
a deputy prosecutor in the Marion County Prosecutor’s office in 2002 and 2003,
she remembered the case very well, and the only meeting she had with Light
occurred with Light’s attorney. She testified that she believed the prosecutor’s
office had served Light with a subpoena for a deposition, Light failed to appear,
and the court may have become “involved in getting her to come to court.” Id.
at 69. Korobov testified that she believed some witnesses stated threats came
from Light and that Light was charged with and ultimately pled guilty to
obstruction of justice. Detective Reidenbach testified that he investigated this
case, spoke with Amy and Milliner on August 9, 2002, they were both clear in
identifying Davis, and they were able to identify Davis based upon their prior
experience with him. The court admitted the police report from Davis’s arrest
as State’s Exhibit 1, which stated in part that Davis gave the name of Johnny
Davis and that his fingerprints came back as belonging to Davis. On September
19, 2017, the post-conviction court denied Davis’s petition.
1
State’s Post-Conviction Exhibit 2 contains an abstract of judgment indicating that Light was convicted of
obstruction of justice as a class D felony in 2003.
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Discussion
[19] Before addressing Davis’s allegations of error, we observe that Davis is
proceeding pro se. Such litigants are held to the same standard as trained
counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.
We also note the general standard under which we review a post-conviction
court’s denial of a petition for post-conviction relief. The petitioner in a post-
conviction proceeding bears the burden of establishing grounds for relief by a
preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);
Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-
conviction relief, the petitioner stands in the position of one appealing from a
negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse
the judgment unless the evidence as a whole unerringly and unmistakably leads
to a conclusion opposite that reached by the post-conviction court. Id. “A post-
conviction court’s findings and judgment will be reversed only upon a showing
of clear error – that which leaves us with a definite and firm conviction that a
mistake has been made.” Id. In this review, we accept findings of fact unless
clearly erroneous, but we accord no deference to conclusions of law. Id. The
post-conviction court is the sole judge of the weight of the evidence and the
credibility of witnesses. Id.
I.
[20] The first issue is whether Davis was denied effective assistance of trial and
appellate counsel. Generally, to prevail on a claim of ineffective assistance of
counsel a petitioner must demonstrate both that his counsel’s performance was
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deficient and that the petitioner was prejudiced by the deficient performance.
French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is
deficient if it falls below an objective standard of reasonableness based on
prevailing professional norms. Id. To meet the appropriate test for prejudice,
the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).
Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at
824. Most ineffective assistance of counsel claims can be resolved by a
prejudice inquiry alone. Id.
[21] When considering a claim of ineffective assistance of counsel, a “strong
presumption arises that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.”
Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance
is presumed effective, and a defendant must offer strong and convincing
evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73
(Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will
not support a claim of ineffective assistance of counsel. Clark v. State, 668
N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.
Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second
guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly
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speculate as to what may or may not have been an advantageous trial strategy
as counsel should be given deference in choosing a trial strategy which, at the
time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d
40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to
the failure to object, the defendant must show a reasonable probability that the
objection would have been sustained if made. Passwater v. State, 989 N.E.2d
766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),
cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)). We apply the same
standard of review to claims of ineffective assistance of appellate counsel as we
apply to claims of ineffective assistance of trial counsel. Williams v. State, 724
N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied, 531 U.S. 1128, 121 S.
Ct. 886 (2001).
[22] Davis claims his trial counsel was ineffective for allowing Light’s counsel to
invoke the Fifth Amendment at a deposition, failing to object to judicial and
prosecutorial misconduct that deprived him of Light’s testimony, failing to
request immunity for Light, failing to make a cogent argument why Light’s
voluntary testimony was admissible, and failing to object to the exclusion of
Light’s testimony. Davis appears to argue that his appellate counsel was
ineffective for failing to raise the argument that his right to confrontation was
violated when the trial court excluded Light’s testimony and letters that
exonerated him and that contradicted the State’s proffered hearsay testimony.
[23] The Sixth Amendment Confrontation Clause establishes that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the
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witnesses against him.” U.S. CONST. amend. VI. The Sixth Amendment
confrontation right, however, occasionally comes into conflict with the Fifth
Amendment right against self-incrimination, State v. Taylor, 49 N.E.3d 1019,
1026 (Ind. 2016), which provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” Recognizing this tension,
“courts must watch vigilantly to ensure that the invocation [does] not
‘effectively . . . emasculate the right of cross-examination itself.’” Id. (quoting
U.S. v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989) (omission in original) (quoting
Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292 (1985))). While the due
process clause of the Fourteenth Amendment and the compulsory process or
confrontation clauses of the Sixth Amendment guarantee criminal defendants a
“meaningful opportunity to present a defense,” Joyner v. State, 736 N.E.2d 232,
242-243 (Ind. 2000), “the power to compel testimony is not absolute.” Kastigar
v. U.S., 406 U.S. 441, 444, 92 S. Ct. 1653, 1656 (1972), reh’g denied. A trial
court is authorized to determine whether an answer to a question proposed to a
witness will incriminate the witness. Duso v. State, 866 N.E.2d 321, 325 (Ind.
Ct. App. 2007).
[24] The exchange regarding whether Light would testify occurred in the courtroom,
and she was represented by counsel. Based upon the exchange, we cannot say
that the court advised Light of her right to avoid self-incrimination in a
threatening or browbeating manner. Light was represented by counsel at trial
and she ultimately decided not to testify. We cannot say that Davis’s trial
counsel was ineffective on this basis. See Duso, 866 N.E.2d at 326 (holding that
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the defendant’s Sixth Amendment right to compulsory process did not trump a
witness’s Fifth Amendment right against self-incrimination). To the extent
Davis asserts that his trial counsel was ineffective for permitting Light’s counsel
to invoke the Fifth Amendment on Light’s behalf, we observe that the portion
of the trial transcript cited by Davis on appeal indicates that Light stated “they
did not let me have a deposition” and “as soon as I was trying to say to them
what happened, they didn’t like what I had to say, so they basically did not give
me a deposition.” Trial Transcript Volume I at 194. The deposition of Light
indicates that Light was present at the deposition, did not attempt to testify as
to the incident, and did not disagree when her counsel stated that she would not
give a statement at that time. We cannot say that Davis has demonstrated that
his counsel was ineffective on this ground.
[25] With respect to Davis’s assertion that his trial counsel was ineffective for failing
to request immunity for Light, we observe that “Indiana, like many states, has
enacted legislation giving prosecutors the authority to grant use immunity to
witnesses and obviate the self-incrimination privilege of the fifth amendment.”
Bubb v. State, 434 N.E.2d 120, 123 (Ind. Ct. App. 1982). “Exercise of this
power is limited to prosecutors.” Id. Davis does not point to the record, and
our review does not reveal, that Davis asked his trial counsel at the post-
conviction hearing why he did not request that Light be afforded immunity.
We also observe that his trial counsel objected to the testimony of Officer Wells
and Paramedic Warren regarding their discussions with Light, informed the
court that he wished to call Light as a witness, questioned Light in the presence
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of the court, told the court that Davis was “insistent that I offer [Light] this
exhibit [the letter Light allegedly wrote to the prosecutor] and ask her if it was
hers,” questioned Light about the letter, and asked Light if she was willing to
testify about the events that occurred on August 8, 2002. Trial Transcript
Volume I at 190. Trial counsel also asserted “it’s our position – that my client
didn’t do this and that her evidence and her testimony is exculpatory in the
matter.” Id. at 193. Later, after the State rested, Davis’s trial counsel again
called Light. Again, we cannot say that Davis has demonstrated that his trial
counsel’s performance was deficient on this basis.
[26] With respect to Davis’s argument that his counsel failed to challenge the
admission of Officer Wells’s testimony, the United States Supreme Court has
explained that “[s]tatements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273
(2006). “In making the primary purpose determination, standard rules of
hearsay, designed to identify some statements as reliable, will be relevant.”
Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S. Ct. 1143, 1155 (2011). “To
determine whether the ‘primary purpose’ of an interrogation is ‘to enable police
assistance to meet an ongoing emergency,’ which would render the resulting
statements nontestimonial, we objectively evaluate the circumstances in which
the encounter occurs and the statements and actions of the parties.” Id. at 359,
131 S. Ct. at 1156 (quoting Davis, 547 U.S. at 822, 126 S. Ct. 2266).
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[27] The facts here objectively demonstrate that the primary purpose of Officer
Wells’s discussion with Light was to enable police assistance to meet an
ongoing emergency. First, Officer Wells’s encounter with Light was at the
scene rather than at the police station. Davis does not challenge the post-
conviction court’s finding that Officer Wells testified that, when he spoke to
Light, she was soaked in blood and blood was pumping out of the wounds in
her head. Second, because Light’s statements were excited utterances, they
“are considered reliable because the declarant, in the excitement, presumably
cannot form a falsehood.” See Bryant, 562 U.S. at 361, 131 S. Ct. at 1157.
Third, because Davis had fled the scene of a violent attack and could not be
located, a reasonable officer would have considered the threat to Light, first
responders, and the public ongoing. See id. at 363-364, 131 S. Ct. at 1158.
Fourth, Officer Wells quickly asked Light her identity and the identity of her
assailant. He testified that “I was . . . trying to get right to the point – what had
occurred and who did it.” Trial Transcript Volume I at 32. There is no
evidence suggesting that Officer Wells told Light that he needed Davis’s
identification for purposes of prosecution, and there is no reason to think that
“a conversation which beg[an] as an interrogation to determine the need for
emergency assistance . . . evolve[d] into testimonial statements.” See Bryant,
562 U.S. at 365, 131 S. Ct. at 1159 (quotations omitted). Officer Wells’s
request for the identity of her attacker was information that allowed him to
“assess the situation, the threat to [his] own safety, and possible danger to the
potential victim and to the public, including to allow [him] to ascertain whether
[he] would be encountering a violent felon.” See id. at 376, 131 S. Ct. at 1166
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(citations and quotations omitted). The circumstances of the encounter, as well
as the statements and actions of Light and Officer Wells, reveal that Light’s
identification of herself and Davis were not testimonial statements. We cannot
say that the Confrontation Clause barred their admission at Davis’s trial. See
McQuay v. State, 10 N.E.3d 593, 599 (Ind. Ct. App. 2014). Also, Davis has not
demonstrated that the statements to Paramedic Warren were testimonial. See
Perry v. State, 956 N.E.2d 41, 57 (Ind. Ct. App. 2011) (holding that the victim’s
statements to a medical provider were not testimonial). Accordingly, we
cannot say that Davis’s trial counsel or appellate counsel were ineffective on
this ground.
II.
[28] The next issue is whether Davis is entitled to a new trial due to newly
discovered evidence. Generally, new evidence will mandate a new trial only
when the defendant demonstrates that: (1) the evidence has been discovered
since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not
merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was
used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can
be produced upon a retrial of the case; and (9) it will probably produce a
different result at retrial. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000) (citing
Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991)). We analyze these nine factors
“with care, as ‘[t]he basis for newly discovered evidence should be received
with great caution and the alleged new evidence carefully scrutinized.’” Id.
(quoting Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987)). “The burden of showing
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that all nine requirements are met rests with the petitioner for post-conviction
relief.” Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006).
[29] Without citation to the record, Davis argues that a comparison of the picture of
Antwon Davis and Denning demonstrates how witnesses misidentified
Antwon. He also asserts that certain facts in Denning’s testimony are
undisputable and establish the seventh and ninth prongs for determining
whether new evidence mandates a new trial. He contends that the testimony of
Whiteside, Amy, and Milliner corroborates Denning’s account.
[30] With respect to the seventh prong, whether the evidence is worthy of credit, we
note that the post-conviction court is the sole judge of the weight of the
evidence and the credibility of witnesses. Fisher, 810 N.E.2d at 679. The post-
conviction court found Denning’s testimony, “both in terms of his demeanor
and credibility as a witness, and in light of the other eyewitnesses who testified,
is not worthy of credit.” Appellant’s Appendix Volume 2 at 226. The court
also found Denning’s testimony “to be inherently unbelievable and
contradictory with other witnesses at trial and at the Post-Conviction
evidentiary hearing.” Id.
[31] To the extent Davis relies on the testimony of Amy and Milliner, we note that
the post-conviction court found that “the post-conviction testimony of Amy
Heady and Kevin Milliner offered nothing substantive, except perhaps that
[Davis] looks similar to a photograph of his brother.” Id. Further, we observe
that their testimony at the post-conviction hearing would merely be impeaching
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of their own trial testimony. We cannot say that Davis satisfied the fourth
prong of the test for newly discovered evidence. See Coates v. State, 534 N.E.2d
1087, 1098 (Ind. 1989) (“Furthermore, evidence that merely impeaches
generally does not support a claim for a new trial based on newly discovered
evidence.”) (citing Downs v. State, 482 N.E.2d 716 (Ind. 1985)).
[32] As to the ninth prong, in determining whether newly discovered evidence
would likely produce a different result at a new trial, the post-conviction court
may consider the weight a reasonable trier of fact would give the evidence and
may evaluate the probable impact the evidence would have in a new trial
considering the facts and circumstances shown at the original trial. Nunn v.
State, 601 N.E.2d 334, 337 (Ind. 1992). The newly discovered evidence must
raise a strong presumption a new trial would achieve a different result. Id.
Even if Amy and Milliner testified at a new trial, the State would have an
opportunity to rehabilitate their testimony by introducing their prior testimony.
As pointed out by the post-conviction court, Denning’s testimony conflicted
with Whiteside’s testimony. We are not persuaded that Davis has raised a
strong presumption a new trial would achieve a different result.2
2
To the extent Davis appears to argue that the post-conviction court abused its discretion when it prevented
him from presenting Light’s testimony, Davis made similar arguments regarding Light’s testimony at trial,
Light had previously invoked her Fifth Amendment privilege, and the record already contained Light’s
statements that Davis did not beat her. With respect to his assertion that the trial court abused its discretion
when it prevented post-conviction counsel from fully and effectively questioning witnesses, Davis cites to
pages 37, 38, and 41 of the post-conviction transcript and we cannot say that these pages demonstrate that the
trial court abused its discretion.
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Conclusion
[33] For the foregoing reasons, we affirm the post-conviction court’s denial of
Davis’s petition for post-conviction relief.
[34] Affirmed.
Bailey, J., and Crone, J., concur.
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