MEMORANDUM DECISION Aug 12 2015, 9:02 am 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 David M. Jones Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David M. Jones, August 12, 2015
Appellant-Petitioner, Court of Appeals Case No. 48A02-1410-PC-731 v. Appeal from the Madison Superior Court. The Honorable Thomas Newman, State of Indiana, Jr., Judge. Appellee-Respondent. Cause No. 48D03-0908-PC-264
Garrard, Senior Judge
[1] David M. Jones appeals the denial of his petition for post-conviction relief. We
affirm.
[2] The facts of the case, as taken from Jones’ direct appeal, are as follows:
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 1 of 7 [T]he victim, Jones’ ex-wife [Donna Jones], saw Jones at her place of employment, a bar, on July 19, 1988. Jones had a bulge in his shirt which appeared to be a gun. Jones left the bar and telephoned the victim, threatening to shoot her. The victim notified the police of Jones’ threat, and she left work early. On the way home, while stopped at a stop sign, the victim noticed Jones in a car in the adjoining lane. Jones was sitting with his head and torso out of the vehicle, which was being driven by a young woman and which also contained one other passenger. Jones pointed his gun at the victim and fired three shots in the direction of her car. The car then sped away. Jones was arrested and charged with recklessness, a class D felony. Jones was also alleged to be an habitual class D felony offender on the basis of his 1979 conviction for possession of marijuana, a class D felony, and his 1982 conviction for operating a motor vehicle while an habitual traffic offender, a class D felony. After a trial by jury on August 7th and 8th, 1989, Jones was convicted on both counts and he received a four-year term of imprisonment for his recklessness conviction, enhanced by eight years due to his status as an habitual class D felony offender, for a total term of imprisonment of twelve years. Jones v. State, 569 N.E.2d 975, 977 (Ind. Ct. App. 1991).
[3] Jones appealed and raised several issues, including a challenge to the
sufficiency of the evidence supporting his conviction of recklessness. A panel of
this Court affirmed his conviction and sentence. Id. at 983.
[4] In 2009, Jones filed a petition for post-conviction relief. The post-conviction
court held an evidentiary hearing on Jones’ petition over several days. On the
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 2 of 7 1 final day of the hearing, the court orally denied the petition. This appeal
followed.
[5] Jones raises seven issues on appeal, but five of them are procedurally defaulted.
We address two issues on the merits: (1) whether the post-conviction court
erred in denying Jones’ claim of newly discovered evidence; and (2) whether
the post-conviction court erred in denying Jones’ petition without issuing
findings of fact and conclusions thereon.
A. Procedural Default [6] Post-conviction proceedings do not afford a petitioner with a super-appeal, and
not all issues are available. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App.
2011). Claims that are known and available at the time of direct appeal, but are
not argued, are waived. Singleton v. State, 889 N.E.2d 35, 38 (Ind. Ct. App.
2008). Here, Jones argues that the original trial court erred by allowing the
State to present testimony on rebuttal from a witness that had not previously
been included on the State’s witness list. He further argues that the State
violated his federal and state rights to due process of law prior to the original
trial by failing to produce the gun with which he allegedly committed the crime.
Jones also claims that the original trial court erred by allowing the State to
1 Jones included a copy of the post-conviction transcript in his Appellant’s Appendix. We remind Jones that Appellate Rule 50(F) provides that parties should not reproduce any part of the transcript in the Appendix because the transcript is separately transmitted to the Court.
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 3 of 7 present evidence of alleged prior bad acts by Jones. These claims could have
been raised in Jones’ direct appeal and are waived.
[7] As a general rule, when a reviewing court decides an issue on direct appeal, the
doctrine of res judicata applies, thereby precluding its review in post-conviction
proceedings. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans.
denied. Jones claims that there is insufficient evidence to sustain his conviction
for recklessness. This claim was raised and adjudicated in his direct appeal and
is barred by res judicata.
B. Newly Discovered Evidence [8] Jones argues that the trial court should not have rejected his claim of newly
discovered evidence, which he asserts establishes that he is innocent of criminal
recklessness.
[9] When appealing the denial of post-conviction relief, the petitioner stands in the
position of one appealing from a negative judgment. Kubsch v. State, 934
N.E.2d 1138, 1144 (Ind. 2010). To prevail on appeal, the petitioner must show
that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id.
[10] When reviewing a post-conviction court’s decision as to whether new evidence
mandates a new trial, we consider whether: (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 Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 4 of 7 credit; (8) it can be produced upon a retrial of the case; and (9) it will probably
produce a different result at retrial. Bradford v. State, 988 N.E.2d 1192, 1198
(Ind. Ct. App. 2013), trans. denied. The burden of showing that all nine
requirements are met rests with the petitioner. Kubsch, 934 N.E.2d at 1145.
[11] At the post-conviction hearing, Jones presented testimony from Christopher
Wallis, who had been dating Donna Jones when the crime occurred and later
married her, from Wallis’ mother Beverly, and from Jones’ trial attorney, John
Ribble.
[12] Jones attempted several times to have Wallis testify that Donna had told him
that she had lied about the shooting, but the State objected on grounds of
hearsay, and the post-conviction court sustained the objections. The post-
conviction court properly sustained the objections because Wallis’ statements
were inadmissible hearsay—out of court statements offered to prove the truth of
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MEMORANDUM DECISION Aug 12 2015, 9:02 am 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 David M. Jones Gregory F. Zoeller Pendleton, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David M. Jones, August 12, 2015
Appellant-Petitioner, Court of Appeals Case No. 48A02-1410-PC-731 v. Appeal from the Madison Superior Court. The Honorable Thomas Newman, State of Indiana, Jr., Judge. Appellee-Respondent. Cause No. 48D03-0908-PC-264
Garrard, Senior Judge
[1] David M. Jones appeals the denial of his petition for post-conviction relief. We
affirm.
[2] The facts of the case, as taken from Jones’ direct appeal, are as follows:
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 1 of 7 [T]he victim, Jones’ ex-wife [Donna Jones], saw Jones at her place of employment, a bar, on July 19, 1988. Jones had a bulge in his shirt which appeared to be a gun. Jones left the bar and telephoned the victim, threatening to shoot her. The victim notified the police of Jones’ threat, and she left work early. On the way home, while stopped at a stop sign, the victim noticed Jones in a car in the adjoining lane. Jones was sitting with his head and torso out of the vehicle, which was being driven by a young woman and which also contained one other passenger. Jones pointed his gun at the victim and fired three shots in the direction of her car. The car then sped away. Jones was arrested and charged with recklessness, a class D felony. Jones was also alleged to be an habitual class D felony offender on the basis of his 1979 conviction for possession of marijuana, a class D felony, and his 1982 conviction for operating a motor vehicle while an habitual traffic offender, a class D felony. After a trial by jury on August 7th and 8th, 1989, Jones was convicted on both counts and he received a four-year term of imprisonment for his recklessness conviction, enhanced by eight years due to his status as an habitual class D felony offender, for a total term of imprisonment of twelve years. Jones v. State, 569 N.E.2d 975, 977 (Ind. Ct. App. 1991).
[3] Jones appealed and raised several issues, including a challenge to the
sufficiency of the evidence supporting his conviction of recklessness. A panel of
this Court affirmed his conviction and sentence. Id. at 983.
[4] In 2009, Jones filed a petition for post-conviction relief. The post-conviction
court held an evidentiary hearing on Jones’ petition over several days. On the
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 2 of 7 1 final day of the hearing, the court orally denied the petition. This appeal
followed.
[5] Jones raises seven issues on appeal, but five of them are procedurally defaulted.
We address two issues on the merits: (1) whether the post-conviction court
erred in denying Jones’ claim of newly discovered evidence; and (2) whether
the post-conviction court erred in denying Jones’ petition without issuing
findings of fact and conclusions thereon.
A. Procedural Default [6] Post-conviction proceedings do not afford a petitioner with a super-appeal, and
not all issues are available. Mallory v. State, 954 N.E.2d 933, 935 (Ind. Ct. App.
2011). Claims that are known and available at the time of direct appeal, but are
not argued, are waived. Singleton v. State, 889 N.E.2d 35, 38 (Ind. Ct. App.
2008). Here, Jones argues that the original trial court erred by allowing the
State to present testimony on rebuttal from a witness that had not previously
been included on the State’s witness list. He further argues that the State
violated his federal and state rights to due process of law prior to the original
trial by failing to produce the gun with which he allegedly committed the crime.
Jones also claims that the original trial court erred by allowing the State to
1 Jones included a copy of the post-conviction transcript in his Appellant’s Appendix. We remind Jones that Appellate Rule 50(F) provides that parties should not reproduce any part of the transcript in the Appendix because the transcript is separately transmitted to the Court.
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 3 of 7 present evidence of alleged prior bad acts by Jones. These claims could have
been raised in Jones’ direct appeal and are waived.
[7] As a general rule, when a reviewing court decides an issue on direct appeal, the
doctrine of res judicata applies, thereby precluding its review in post-conviction
proceedings. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App. 2015), trans.
denied. Jones claims that there is insufficient evidence to sustain his conviction
for recklessness. This claim was raised and adjudicated in his direct appeal and
is barred by res judicata.
B. Newly Discovered Evidence [8] Jones argues that the trial court should not have rejected his claim of newly
discovered evidence, which he asserts establishes that he is innocent of criminal
recklessness.
[9] When appealing the denial of post-conviction relief, the petitioner stands in the
position of one appealing from a negative judgment. Kubsch v. State, 934
N.E.2d 1138, 1144 (Ind. 2010). To prevail on appeal, the petitioner must show
that the evidence as a whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Id.
[10] When reviewing a post-conviction court’s decision as to whether new evidence
mandates a new trial, we consider whether: (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 Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 4 of 7 credit; (8) it can be produced upon a retrial of the case; and (9) it will probably
produce a different result at retrial. Bradford v. State, 988 N.E.2d 1192, 1198
(Ind. Ct. App. 2013), trans. denied. The burden of showing that all nine
requirements are met rests with the petitioner. Kubsch, 934 N.E.2d at 1145.
[11] At the post-conviction hearing, Jones presented testimony from Christopher
Wallis, who had been dating Donna Jones when the crime occurred and later
married her, from Wallis’ mother Beverly, and from Jones’ trial attorney, John
Ribble.
[12] Jones attempted several times to have Wallis testify that Donna had told him
that she had lied about the shooting, but the State objected on grounds of
hearsay, and the post-conviction court sustained the objections. The post-
conviction court properly sustained the objections because Wallis’ statements
were inadmissible hearsay—out of court statements offered to prove the truth of
the matter asserted. Ind. Evidence Rules 801(c), 802. These statements do not
amount to admissible evidence. Wallis further testified, without objection, that
he told his mother that Jones did not commit the crime. However, Wallis also
testified that he was not present at the scene of the crime, so this statement
appears to be irrelevant and unworthy of credit.
[13] Beverly testified, without objection, that Christopher had told her that Jones did
not commit the crime. She further testified that Donna told her that she had
lied about the crime. These statements are hearsay that would not be
admissible at retrial and are thus incompetent. Beverly also testified that she
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 5 of 7 told Jones’ trial attorney, Ribble, that Donna had lied about the event. This
evidence does not appear to be worthy of credit because it was apparently based
on Donna’s statement to Beverly, which was inadmissible hearsay.
[14] Ribble testified that Beverly had told him she overheard Wallis and Donna
stating that they had lied about the shooting. He also testified that Wallis had
told him that Wallis had encouraged Donna to make up the event to get Jones
put in jail. Once again, these statements were inadmissible hearsay and thus
incompetent for purposes of deciding whether they constituted newly
discovered evidence.
[15] In addition, Wallis, Beverly, and Ribble’s statements all share another flaw:
they are merely impeaching. Donna testified at Jones’ original trial, and her
testimony was sufficient to sustain Jones’ conviction for criminal recklessness.
Jones, 569 N.E.2d at 980. Donna died prior to the post-conviction hearing. The
evidence Jones presented at the post-conviction hearing may have called
Donna’s testimony into question, but evidence that simply calls prior testimony
into question does not amount to newly discovered evidence that requires a
new trial. Cf. State v. McCraney, 719 N.E.2d 1187, 1190 (Ind. 1999)
(determining that a witness’s complete recantation of prior testimony was more
than impeaching because it was freestanding evidence of innocence that
obliterated the witness’s own prior, inculpatory testimony). We cannot
conclude that the evidence, taken as a whole, leads to a conclusion opposite
that reached by the post-conviction court.
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 6 of 7 C. Findings of Fact and Conclusions Thereon [16] Jones asserts that the post-conviction court erred by failing to issue findings of
fact and conclusions thereon denying his petition for post-conviction relief.
[17] A post-conviction court shall make specific findings of fact and conclusions of
law on all issues presented. Ind. Post-Conviction Rule 1(6). A post-conviction
court’s failure to enter specific findings of fact and conclusions of law in ruling
on a petition is not reversible error when the issues are sufficiently presented for
review and addressed by the parties. Neville v. State, 663 N.E.2d 169, 174 (Ind.
Ct. App. 1996). In this case, the parties adequately addressed the one claim
that was properly preserved for appellate review, so there is no reason to
remand for the issuance of findings of fact and conclusions thereon.
[18] For the foregoing reasons, we affirm the judgment of the post-conviction court.
[19] Kirsch, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1410-PC-731 | August 12, 2015 Page 7 of 7