Moredock v. State, 182S10

• Decision Date: 03 December 1982
• Docket Number: No. 182S10,182S10
• Citation: 441 N.E.2d 1372
• Parties: Steven MOREDOCK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1372

441 N.E.2d 1372

Steven MOREDOCK, Appellant, v. STATE of Indiana, Appellee.

No. 182S10.

Supreme Court of Indiana.

Dec. 3, 1982.

J. Richard Kiefer, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Cynthia Sue Stanley, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted by a jury of rape while armed with a deadly weapon and confinement. He was sentenced to a thirty (30) year term and a ten (10) year term of imprisonment for the respective offenses. The sentences were ordered to be served consecutively.

The record reveals the victim, S.B., testified she had been introduced to the appellant by her brother who had previously lived with her. S.B. further stated appellant had come to her apartment looking for her brother once before the day of the rape. Because he was familiar to her, S.B. opened the door and appellant came into her apartment on December 1, 1980, sometime around 11:00 a.m. Allegedly threatening her with a gun and a knife, appellant raped S.B. Appellant pushed S.B. down a flight of stairs. He left her apartment approximately one to one and a half hours after the attack. At 2:10 p.m., a Marion County Sheriff's Deputy began his investigation.

Dr. Payne examined the victim at a hospital emergency room at 3:40 p.m. He testified he found no bruises, lacerations or trauma.

Appellant raises four issues for our review. Because we find one issue to be dispositive, we address only his claim of newly discovered evidence.

The standards applied in determining whether an appellant is entitled to a new trial based on newly discovered evidence were stated in Smith v. State, (1982) Ind., 429 N.E.2d 956, 958, quoting Emerson v. State, (1972) 259 Ind. 399, 406-7, 287 N.E.2d 867, 871-2:

" 'An application for a new trial, made on the ground of newly discovered evidence, must be supported by affidavit and such affidavit or affidavits must contain a statement of the facts showing (1) that 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. Cansler v. State, (1972) Ind. , 281 N.E.2d 881; Tungate v. State, (1958) 238 Ind. 48, 147 N.E.2d 232. In deciding whether a piece of evidence would produce a different result the presiding judge may properly consider the weight which 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.' "

The ruling on a request for a new trial based on newly discovered evidence is within the discretion of the trial court and will not be disturbed unless there has been an abuse of that discretion. Smith, supra.

In the case at bar, appellant's counsel filed a motion to correct errors based on newly discovered evidence as set forth by Trial Rule 59(H), Indiana Rules of Trial Procedure. Verified affidavits accompanying the motion to correct errors were made by appellant, his trial counsel and two affiants.

The victim's cousin made an affidavit stating: (1) that the victim's boyfriend came to his apartment saying the victim had been raped; (2) that he thereafter went with the boyfriend to the victim's residence; (3) that the victim "did not seem very upset, at all;" (4) that he noticed "a lot of contradictions in what she told the police;" (5) that he knew the appellant had dated the victim for months before the alleged rape and had spent many nights with her; (6) that "[s]hortly before this incident ... [the victim] told me she wanted [her boyfriend] to move out and she was trying to get rid of him. [The boyfriend] had told me (also before December) that if a woman of his ever got raped he would not stay with her. It seemed strange to me that soon after [the victim] said she wanted to get rid of [her boyfriend], she said [appellant] raped her;" (7) that the victim demonstrated remorse in filing charges against appellant and intended to drop charges; (8) that the victim tacitly admitted appellant did not rape her; (9) that the victim had emotional...