Fox v. State, 72S00-8811-CR-907

• Decision Date: 19 March 1991
• Docket Number: No. 72S00-8811-CR-907,72S00-8811-CR-907
• Citation: 568 N.E.2d 1006
• Parties: Larry D. FOX, Sr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1006

568 N.E.2d 1006

Larry D. FOX, Sr., Appellant, v. STATE of Indiana, Appellee.

No. 72S00-8811-CR-907.

Supreme Court of Indiana.

March 19, 1991.

Russell A. Johnson, Jones Loveall and Johnson, Franklin, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Roger L. Duvall, Pros. Atty. of Scott County, Scottsburg, for appellee.

PETITION FOR REHEARING

DeBRULER, Justice.

Appellant Fox was tried by jury and convicted of the murder of Joyce Beyers. She drowned in the waters of Hardy Lake in Scott County while boating with appellant. Her body showed injuries on the legs between the knee and ankle, an injury to the arm, and two fresh bruises on the back of the head. The cause of death was asphyxia due to drowning. A sentence of forty years was given. The conviction was affirmed by a divided Court with separate opinions appearing at 560 N.E.2d 648. Appellant has filed a timely application for a rehearing pursuant to Ind. Appellate Rule 11(A). Appellant asserts in part in the application that this Court's decision was in error in rejecting his claim that he is entitled to a new trial based on newly discovered evidence.

The newly discovered evidence claim was made by appellant in a post-trial motion to correct errors. Such claim for a new trial is authorized by Ind.Crim.Rule 16 and Ind.Trial Rule 56. Wilson v. State (1987), Ind., 511 N.E.2d 1014. A motion to correct error based upon the ground of newly discovered evidence must be supported by one or more affidavits which must contain a statement of the facts showing (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. Emerson v. State (1972), 259 Ind. 399, 287 N.E.2d 867. In ruling whether a piece of evidence would produce a different result, the judge may properly consider the weight that a reasonable trier of fact would give it and, while so doing, may also evaluate its probable impact on a new trial in light of all the facts and circumstances shown at the original trial of the case. Id. On appeal, the denial of a motion predicated on newly discovered evidence is considered a discretionary ruling and is reviewed deferentially. Hammers v. State (1987), Ind., 502 N.E.2d 1339.

Here the trial court received the affidavits and testimony of several witnesses, including Larry Fox, Jr., and Ray Davis, in support of the motion to correct errors. The two were subjected to cross-examination by the trial prosecutor at the hearing. Larry Fox, Jr., is the fifteen-year-old son of appellant and the victim, Joyce Beyers. He provided an affidavit and testified that on the morning of the day of his mother's death, he heard a loud noise coming from their garage. He ran to the garage and found her holding the back of her head. She then said that while attempting to put the doors on a jeep, she fell and struck the back of her head and needed to sit down a little while. He further stated that he had not been previously told the details of the injuries to the head, other than that appellant had struck her in the head, which he had interpreted to mean about the face.

The witness Ray Davis provided an affidavit and testified that he was a construction worker, had no newspaper delivery to his home in Lawrence County, and had no telephone. He was not acquainted with the family of appellant. He stated that he learned of the death of Joyce Beyers at Hardy Lake from a newspaper dated May 13, 1988, and that he had no knowledge of the import of his observations prior to the trial on April 8, 1988. The jury returned its verdict on April 7, 1988. After studying the paper for several days, he realized that the death had occurred on the Saturday before Easter, March 29, 1986, when he observed a boating mishap while fishing at Hardy Lake in his boat. He then contacted the Fox family. He stated that on that day, about dark, he passed a fifteen- or sixteen-foot boat on the lake occupied by two persons. He saw "a person exit from the back of a boat," while the other person in the boat was in the front. The boat then circled back to the point at which the first person had fallen out. Davis thought they were "playing around or just having fun," so he continued on his way into the dock. He was not able to identify the persons in the boat or their gender.

Upon the basis of the application for rehearing, we turn to reexamine the affidavits and testimony upon which the newly discovered evidence ground has been predicated, particularly the Davis evidence, to determine whether it meets the aforementioned standards. The observations related by Davis occurred at the time and place of the drowning as described by the State's witnesses. His description of the boat he observed and the number of its occupants is identical to that provided by photographs of the boat and testimony of others who were near the lake at the same time. His impression that the two in the boat were playing and having fun is the same as that held by other witnesses. His observation that one person was in the front of the boat and that the other person fell out the back of the boat corresponds to the...