Shaffer v. State
| Decision Date | 21 September 1983 |
| Docket Number | No. 2-982A322,2-982A322 |
| Citation | 453 N.E.2d 1182 |
| Parties | Richard E. SHAFFER, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee. |
| Court | Indiana Appellate Court |
Marcus C. Emery, Steers, Sullivan, McNamar & Rogers, Indianapolis, for petitioner-appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for respondent-appellee.
Appellant Richard Shaffer appeals from the denial of his petition for post-conviction relief by the Marion Superior Court. We affirm.
On August 27, 1977, the victim, R.H., awoke in the early morning hours to find a man in her bedroom. When she began to scream, the man placed a pillow over her face and repeatedly told her to stop screaming or he would beat her to death. The victim was then ordered to undress her attacker. When she was unable to do so, he undressed himself and then attempted to perform cunnilingus. The victim dissuaded him by claiming to have a serious infection. The man then instead forced her to commit fellatio and subsequently proceeded to force intercourse several times. After he left, and fearing his return, R.H. relocked the doors and windows. Her assailant did in fact return to retrieve the cigarettes and eyeglasses he had left behind. However, the coincidental approach of a passing police car prompted the man to leave.
When she was certain he had left, R.H. roused her neighbors, who then called the police. The responding officer, after taking statements and securing the scene and evidence, took R.H. to the hospital where a standard sexual assault examination was conducted. This included a sperm smear, vaginal washing for acid phosphatase, blood type, and VDRL. After the examination, R.H. returned home only long enough to gather some clothes and then left.
Around 5:30 A.M. that same morning, the neighbor, to whom R.H. earlier had contacted for help, took his dog out and noticed a man loitering about the windows of the victim's home. Without any solicitation, the man asked if the occupant had been raped. While advising the man to leave, the neighbor recognized him as the Arab pest control man who lived two houses away. Upon the neighbor's questioning, the man admitted that he was indeed "the bug man." Record at 352.
On August 30, 1977, R.H. met with a detective of the sex crimes unit of the Indianapolis Police Department. From the description of the assailant that R.H. had given the responding officer on the night of the attack, the detective had prepared a photographic line-up from which R.H. positively identified the defendant as the man who had raped and sodomized her. R.H. also subsequently unequivocally identified the defendant at trial. Shaffer was convicted of rape and sodomy. His conviction was affirmed on direct appeal to this court. A subsequent petition for post-conviction relief was denied and it is from this denial that Shaffer now appeals.
Shaffer raises three issues on appeal. Rephrased, they are as follows:
1. Did the post-conviction court abuse its discretion in denying appellant's motion for a new trial based on newly-discovered evidence?
2. Did the post-conviction court err in refusing to admit certain statistical data?
3. Did the post-conviction court err in excluding the testimony of a juror from Shaffer's original trial?
The post-conviction court did not abuse its discretion in denying appellant's motion for a new trial based upon newly-discovered evidence.
Subsequent to the conclusion of the trial, appellant discovered that, at the time of the attack, the victim had been suffering from gonorrhea. Shaffer contends that because he did not contract the disease, such evidence would probably produce a different result upon the retrial of the case. The post-conviction court disagreed and denied Shaffer's petition on that ground. 1 We conclude that the court did not err in denying the petition.
We begin by noting that an unsuccessful petitioner for post-conviction relief stands in the shoes of one appealing a negative judgment. Walker v. State, (1978) 267 Ind. 649, 651, 372 N.E.2d 739, 740. The petitioner must demonstrate that the decision of the post-conviction court is contrary to law. See Hollonquest v. State, (1982) Ind., 432 N.E.2d 37, 39; Diggs v. State, (1981) Ind., 429 N.E.2d 933, 934. The hearing on a petition for post-conviction relief is civil in nature, Henry v. State, (1976) 170 Ind.App. 463, 465, 353 N.E.2d 482, 484; Shields v. State, (1976) 169 Ind.App. 238, 240, 348 N.E.2d 36, 37, and the petitioner must prove his allegations by a preponderance of the evidence. Diggs; Beard v. State, (1981) Ind., 428 N.E.2d 772, 775. We also note that a claim of newly discovered evidence, as a basis for a new trial, is viewed with disfavor by this court. Pedigo v. State, (1982) Ind.App., 443 N.E.2d 347, 349; Moss v. State, (1982) Ind.App., 433 N.E.2d 852, 855, trans. denied. The denial of such a claim will be reversed only upon a showing of an abuse of discretion. Pedigo; Moss, 433 N.E.2d at 855-56. In order to demonstrate that the newly discovered evidence merits the granting of a new trial, the petition must be supported by an affidavit which contains a statement of the facts showing:
Smith v. Smith, (1982) Ind., 429 N.E.2d 956, 958, quoting Tungate v. State, (1958) 238 Ind. 48, 54-55, 147 N.E.2d 232, 235-36. Shaffer contends that, because R.H. had gonorrhea and he did not, he has met his burden of showing that the evidence would produce a different result upon retrial. We cannot agree.
While it was demonstrated at the post-conviction hearing, by reference to undisputed medical records, that R.H. did indeed have an active gonorrheal infection at the time of the attack, such definitive evidence was not adduced to support Shaffer's claim that he did not have gonorrhea. Instead, testimony indicated that Shaffer was called to the office of the medical officer of the Marion County Sheriff's Department on September 23, 1977, and asked whether he had any symptoms of venereal disease. 2 Shaffer's wife also testified at the post-conviction hearing that prior and subsequent to the attack, she had had sexual relations with her then boyfriend Shaffer and had not contracted gonorrhea. She also testified that as part of her prenatal care, the hospital had run tests to determine whether she had any diseases which could threaten her child. However, no conclusive medical evidence was adduced to support defendant's claims. We cannot agree that such unsupported, self-serving claims constitute proof by a preponderance of the evidence that such evidence would probably produce a different result upon retrial.
Further, as defendant himself has correctly noted:
Adams v. State, (1982) Ind., 430 N.E.2d 771, 774. Based upon the previously-stated facts, we cannot say that Shaffer's less-than conclusive evidence would probably result in a different result upon retrial. We, therefore, conclude that the post-conviction court did not err in denying Shaffer's petition for a new trial based upon his claim of newly-discovered evidence.
The court did not err in refusing to admit Shaffer's statistical data.
Shaffer attempted to introduce a portion of a U.S. Department of Health and Human Services Sexually Transmitted Disease Statistical Letter which purported to demonstrate that only roughly 5% of those who had intimate contact with gonorrhea sufferers would not contract the disease. In an issue closely related to his first issue, Shaffer contends that because R.H. definitely...
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