Tyson v. State
| Decision Date | 20 December 1993 |
| Docket Number | No. 49A04-9211-PC-422,49A04-9211-PC-422 |
| Citation | 626 N.E.2d 482 |
| Parties | Michael G. TYSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Lee B. McTurnan, Judy L. Woods, McTurnan & Turner, Indianapolis, Alan M. Dershowitz, Cambridge, MA, James H. Voyles, Symmes Voyles Zahn Paul & Hogan, Indianapolis, Nathan Z. Dershowitz, Jamin S. Dershowitz, Dershowitz & Eiger, P.C., New York City, for appellant-defendant.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., on brief, Pamela Lynn Carter, Atty. Gen., Matthew Ryan Gutwein, Lawrence Mark Reuben, Arend J. Abel, Deputy Attys. Gen., Indianapolis, argued, for appellee-plaintiff.
Michael G. Tyson appeals the post-conviction court's summary disposition of his petition for post-conviction relief. We affirm in part and reverse in part.
1. Did the post-conviction court err when it summarily denied Tyson's petition for post-conviction relief based on his claim of newly discovered evidence?
2. Did the post-conviction court err when it summarily denied Tyson's petition for post-conviction relief based on alleged violations of Brady v. Maryland?
Tyson asserts that newly discovered evidence warrants a new trial. 1 To prevail upon a claim for post-conviction relief based on allegations of newly discovered evidence, Tyson must prove:
(1) the evidence was discovered since 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 retrial; and (9) it will probably produce a different result.
Lyles v. State (1991), Ind.App., 576 N.E.2d 1344, 1348, trans. denied; Francis v. State (1989), Ind., 544 N.E.2d 1385, 1386.
The evidence which Tyson asserts is newly discovered is that: (1) D.W. planned to sue Tyson in civil court for damages; (2) she planned to market the book and movie rights regarding her experience with Tyson; and (3) "[D.W.'s] father (and perhaps [D.W.] herself) mistakenly believed both that the jury in the criminal case could itself award [D.W.] financial compensation, and that a criminal judgment would be conclusive on the question of liability in the civil case." Petitioner's Brief at 10.
Tyson makes a two-pronged argument with reference to this evidence, the first of which is that this newly discovered evidence entitles him to a new trial because it proves that D.W. and her parents gave false, misleading, or perjurious testimony. The second prong, while related to the first, emphasizes that the new evidence has independent relevance because, without regard to the truthfulness of the trial testimony of D.W. and her parents, the new evidence reveals "powerful financial motives" of D.W. and her parents 2 to seek Tyson's conviction. Because both prongs of Tyson's argument must meet the same component of due diligence, we examine them together. 3
The post-conviction court's summary denial of Tyson's petition was proper because the record shows, as a matter of law, that Tyson did not exercise due diligence to discover the evidence before trial. Motions for a new trial based on newly discovered evidence are subject to a "hostile inference of want of [due diligence] in absence of a clear showing to the contrary." Fuller v. State (1937), 213 Ind. 144, 150, 10 N.E.2d 594, 596. "A finding of due diligence does not rest upon abstract conclusions about, or assertions of, its exercise but upon a particularized showing that all the methods of discovery reasonably available to counsel were used and could not uncover the newly-found information." Lyles, 576 N.E.2d at 1349 (citations omitted); see also Bradburn v. State (1981), Ind., 425 N.E.2d 144, 146 ().
Tyson claims that evidence proving D.W. and her family had financial motives to obtain a criminal conviction was the " 'smoking gun' that the defense lacked at trial." Petitioner's Brief at 14. In fact, Tyson asserts that "had the jury had any inkling that [D.W.] and her parents had visions of civil damage awards and book and movie projects dancing in their heads, the chance of a conviction would have been virtually nil." Id. at 48. In light of the importance of this evidence to Tyson's defense, he claims that "a virtually herculean effort by the defense to expose the nature of the Washingtons' relationship with their civil lawyers" was made. Id. at 41. An examination of the record, however, proves otherwise.
D.W.'s deposition and trial testimony establish that, without question, Tyson knew a professional relationship existed between D.W. and Gerstein. For example, in her December 20, 1991, deposition, D.W. responded as follows to questions propounded by Tyson:
Q. Have you hired a lawyer in connection with this case?
A. Yes.
Q. Who have you hired?
A. Edward Gerstein.
* * * * * *
Q. And did you yourself retain Mr. Gerstein?
A. With the help of my family.
* * * * * *
Q. What did you hire him to do?
A. To advise me, to help me through this.
PCR Record at 147. The record of Tyson's trial reveals Tyson shared this information with the jury during his opening statement. Tyson's trial counsel pointed to Gerstein in the courtroom and stated:
Now one of the interesting things about the money motive here is when [D.W.] returns to Rhode Island, one of the very first things she does is hire a lawyer, Edward Gerstein by name, and Mr. Gerstein hires a lawyer in Indianapolis. They have been with this case ever since. In fact, they're here today in the audience, following this case with great intensity. Why? Because if Mr. Tyson were convicted, these lawyers could bring a lawsuit on behalf of [D.W.] that stands to make her a very wealthy woman.
Record at 2962. Tyson's trial counsel also cross-examined D.W. about her financial arrangement with Gerstein.
From the information Tyson gathered from D.W., the post-conviction court had no choice but to determine that Tyson reasonably should have suspected, if not assumed, that a written agreement existed documenting the nature and scope of D.W.'s relationship with Gerstein, and due diligence required that he specifically question D.W. about its existence and content and either subpoena the document or request its production. 4 Nevertheless, the trial record reveals that Tyson failed to take advantage of available discovery procedures to require D.W., Gerstein, or his local counsel to produce documents relating to any agreement D.W. had with any of these attorneys. Neither did Tyson attempt to subpoena any such documents.
Moreover, despite Tyson's knowledge of the professional relationship, and even though he claims D.W.'s financial motive to falsely accuse him of criminal conduct would have been a critical aspect of his defense had he known of it, the trial record reveals that Tyson failed to ask D.W., point blank, any number of questions on the subject. For example, Tyson did not ask D.W. if she expected to receive any monetary benefits from her experience; if she had retained Gerstein to pursue a civil suit; if she had any written agreement with Gerstein; if she had contemplated bringing a civil suit; if she had the present intent to sue Tyson; if she had discussed selling her media rights with anyone; if she wanted to sell or had contemplated selling her media rights; or if she believed she could exploit her experiences with Tyson in any other way.
Based upon Tyson's failure to take advantage of the reasonable avenues available to him, even though he unquestionably knew that D.W. had retained private counsel and also knew that his indictment had garnered international attention creating the possibility of media exploitation, the post-conviction court did not err when it concluded that Tyson did not use due diligence to discover the evidence which he now claims is newly discovered.
Nevertheless, Tyson argues that his lack of diligence should be excused because D.W. and her parents, in their depositions and at trial, testified perjuriously, falsely, or misleadingly in order to obscure his ability to discover the family's financial motives. In particular, Tyson claims he was unable to put the "critical fact" before the jury that D.W. had consulted Gerstein "with a view towards instituting a civil action against Tyson" because "[t]he Washingtons took the position, at their depositions and before the jury at trial, that Gerstein ... was retained only for defensive purposes...." Petitioner's Brief at 3-4 (emphasis in original). However, the post-conviction court properly concluded that the testimony of D.W. and her parents was not perjurious or false as a matter of law due to the ambiguous and unfocused nature of the questions posed. 5
Similarly unavailing is Tyson's claim that the testimony of D.W. and her parents was misleading. The fact is that D.W. and her parents did not volunteer any information in answering the questions propounded to them; they merely responded literally to the questions as phrased. If Tyson was misled by the character of their answers, it was due to the unfocused and ambiguous phrasing of the questions propounded to them rather than any guile in their answers, particularly considering the fact that Tyson unquestionably knew that D.W. had retained Gerstein and, therefore, had the basic information he needed to frame focused and explicit questions.
In conclusion, the post-conviction court did not err when it determined that, as a matter of law, Tyson did not exercise due diligence with reference to the claimed newly discovered evidence. Neither did it err when it determined that, as a matter of law,...
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