Nunn v. State

• Decision Date: 23 October 1992
• Docket Number: No. 48S00-9107-CR-548,48S00-9107-CR-548
• Citation: 601 N.E.2d 334
• Parties: Trevor T. NUNN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 334

601 N.E.2d 334

Trevor T. NUNN, Appellant, v. STATE of Indiana, Appellee.

No. 48S00-9107-CR-548.

Supreme Court of Indiana.

Oct. 23, 1992.

H. Erskine Cherry, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

KRAHULIK, Justice.

Trevor T. Nunn (Defendant-Appellant) was found guilty by a jury of murder, a class A felony, Ind.Code Sec. 35-42-1-1(1). He received a sentence of 51 years. In this direct appeal, Nunn raises the following issues:

(1) Whether the trial court erred in denying a new trial based upon newly-discovered evidence;

(2) Whether the trial court erred in denying the introduction of impeaching evidence of a State's witness;

(3) Whether there was sufficient evidence to sustain the conviction of murder where death of the victim was not a probable consequence of defendant's acts; and

(4) Whether the trial court erred in giving the State's tendered Instructions No. 4, 5, and 7 over defendant's objections.

Facts

On June 18, 1990, a group of children were playing in Geater Park in Anderson. Among these children were Amber and Josh Root, the children of Jean Aldridge. The children, while playing near the railroad tracks in the park, began to throw rocks. At one point, the children threw rocks at each other. A rock thrown by Eugenia Menefee struck Amber. After Amber was hit, she ran home to tell her mother. Aldridge went to the park to speak with the child who had thrown the rock at Amber.

Upon arriving at the park, Aldridge, who was upset, inquired about the child. The conversation took place between Aldridge and three people, Nunn, Zran Ashley, and Michelle Pearson, in a park shelter house. Some of the children who had been playing were nearby and heard the conversation. Eugenia Menefee identified herself to Aldridge. Aldridge proceeded to yell and swear at Menefee. Ashley also argued with Aldridge.

At some point, Nunn walked away from the conversation and spoke with the other children. After speaking with the children, Nunn approached Aldridge from behind and, as he passed her, he struck her in the area of her head and neck. Nunn continued walking and left the shelter area.

Aldridge was found a short time later lying on her back near the shelter. Emergency help and the police were called. Aldridge was transported to St. John's Medical Center. When Aldridge arrived at the hospital, she had no pulse or blood pressure and her pupils were fixed. Aldridge was pronounced dead after she did not respond to stimulation attempts.

On June 19, 1990, Michael Allen Clark, M.D., performed an autopsy on Aldridge. Dr. Clark determined the cause of death as a severed vertebral artery in the neck of Aldridge which was caused by blunt force trauma to the neck. This type of injury is unusual and almost instantaneously fatal.

On June 21, 1990, Nunn was charged by information with one count of murder.

I. Newly-Discovered Evidence

Nunn argues that the trial court erred when it denied his request for a new trial. He asserts that newly-discovered evidence, more specifically that Ashley kicked Aldridge, would have a material effect on the result at a new trial.

In order to obtain a new trial based on newly-discovered evidence, appellant must prove 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 on a retrial of the case; and (9) it will probably produce a different result. Bustamante v. State (1990), Ind., 557 N.E.2d 1313, 1324; Hughes v. State (1989), Ind., 546 N.E.2d 1203, 1210. The trial court, in determining whether a piece of evidence would produce a different result upon a new trial, may consider the weight that a reasonable trier of fact would give it and may evaluate the probable impact the evidence would have in a new trial considering the facts and circumstances shown at the original trial. Fox v. State (1991), Ind., 568 N.E.2d 1006, 1007. The newly-discovered evidence must raise a strong presumption that in all probability a different result would be achieved in a new trial. O'Connor v. State (1988), Ind., 529 N.E.2d 331, 333. Unless the newly-discovered evidence indicates a probable change in the result of the original trial, a new trial need not be granted. Id. On appeal, the denial of a motion based on newly-discovered evidence will be reversed only upon a showing that the trial court abused its discretion. Fox, 568 N.E.2d at 1007; O'Connor, 529 N.E.2d at 333; Blacknell v. State (1987), Ind., 502 N.E.2d 899, 902; Harden v. State (1982), Ind., 441 N.E.2d 215, 219, cert. denied (1983), 459 U.S. 1149, 103 S.Ct. 794, 74 L.Ed.2d 998. The defendant has the burden to show that the newly-discovered evidence meets the standard for a new trial. O'Connor, 529 N.E.2d at 333.

Here, Nunn supported his motion to correct error with testimony presented at the sentencing hearing. The evidence consisted of two witnesses, Trina Hopkins and Dee Dee Nunn. Both witnesses were present at the park on the evening of the incident. Hopkins, although not at the shelter house, was approximately ten feet away from it and saw Nunn strike Aldridge. At the sentencing hearing, Hopkins testified that she also saw Ashley kick Aldridge. Dee Dee Nunn, defendant's cousin, although she was in the vicinity of the shelter house, did not witness the incident. At the sentencing hearing, Dee Dee testified that while she was in the parking lot, Pearson approached her and told her that she should go to the shelter house because her cousin had hit a woman. Additionally, Dee Dee testified that Pearson telephoned her later that evening and told her that Ashley kicked Aldridge after Nunn hit Aldridge.

We find that the evidence fails to meet the standards for granting a new trial. Hopkins' testimony lacks credibility because she failed to say anything at the time of the investigation. This is evidenced by the fact that on the day of the incident she told the police she saw nothing. Dee Dee Nunn's testimony concerned alleged statements made by Pearson regarding the incident. The record already contained evidence of these statements so that the testimony of Dee Dee Nunn was merely cumulative. We have not been convinced by Nunn that the new evidence would probably produce a different result in a new trial. We hold that the trial court committed no error in denying Nunn a new trial based on newly-discovered evidence.

II. Impeachment by Conviction

Nunn argues that it was improper for the trial court to preclude the defense from using evidence of a prior conviction to impeach a State witness, even though there was a pardon for the crime.

This issue, whether a conviction for which a pardon has been granted may be used to impeach the witness, is one of first impression. As part of our decision, we examine what effect a pardon has on the conviction.

This Court in Kelley v. State (1933), 204 Ind. 612, 185 N.E. 453, concluded that a pardon relieves the person of the punishment for the crime and obliterates the finding of guilt. The Court determined that the State could not use a prior conviction which had been pardoned to support an habitual offender charge. Id., 204 Ind. at 630-31, 185 N.E. at 460. In explaining the decision, the Court cited a United States Supreme Court decision which states:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

Ex parte Garland (1866), 71 U.S., 4 Wall. 333, 379, 18 L.Ed. 366, 370, quoted in Kelley, 612 Ind. at 625, 185 N.E. at 458.

The Court of Appeals recently examined a similar issue in State v. Bergman (1990), Ind.App., 558 N.E.2d 1111. In Bergman, the Court of Appeals examined the ability of the court to expunge a conviction after a pardon. The court concluded that in order to "clear defendant's name" and to give effect to the pardon, it was appropriate to expunge the record of the conviction. Id. at 1114. The court determined its decision to be consistent with Kelley.

Additionally, the Federal Rules of Evidence provide only a limited right to use a conviction after a pardon. Federal Rule of Evidence 609(c) provides:

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

As stated in Kelley, the purpose of a pardon is to give a person a new start by blocking out the existence of guilt. Kelley, 204 Ind. at 625, 185 N.E. at 458. When a pardoned conviction is used to impeach a person, the purpose for granting the pardon may be diminished. The Federal Rule, however, protects the purpose of a pardon by permitting impeachment by a pardoned conviction only in limited circumstances. In doing this, we find that the Federal Rule furthers the purpose of a pardon. Accordingly, we adopt the Federal Rule which generally denies impeachment by a conviction after a pardon is granted.

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