Wisehart v. State

Decision Date19 March 1998
Docket NumberNo. 48S00-9005-PD-378,48S00-9005-PD-378
Citation693 N.E.2d 23
PartiesMark Allen WISEHART, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondent Below).
CourtIndiana Supreme Court

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Susan K. Carpenter, Public Defender, Thomas C. Hinesley, Deputy Public Defender, Janet S. Downling, Special Assistant, J. Jeffreys Merryman, Jr., Deputy Public Defender, Indianapolis, for Appellant.

Pamela Carter, Attorney General, James A. Joven, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

We review and affirm a post-conviction court's denial of Mark Allen Wisehart's petition for post-conviction relief.


Petitioner Mark Allen Wisehart appeals the denial of post-conviction relief with respect to his convictions for Murder, 1 Robbery, 2 Burglary, 3 and Theft 4 and his sentence of death. 5 We earlier affirmed Wisehart's direct appeal of these convictions and sentence. Wisehart v. State, 484 N.E.2d 949 (Ind.1985), cert. denied 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986).

The crimes of which Wisehart was convicted involved the beating and stabbing of an elderly woman, Marjorie Johnson, in her apartment and the taking of a small amount of money. Wisehart was convicted largely on the strength of a detailed confession which we ruled on direct appeal was properly admitted at trial. Of importance to issues facing us in this appeal is that the confession gave no suggestion that Wisehart had any accomplices in the crimes and that all of the other evidence linking Wisehart to the crimes was circumstantial. We refer the reader to our earlier opinion for additional details of the facts.


Wisehart's most substantial claim of entitlement to post-conviction relief is grounded in a claim of "newly-discovered evidence." He argues that while he was convicted and sentenced on the theory that he acted alone, new evidence presented at his post-conviction hearing shows that he had two accomplices, one of whom was the primary actor in the murder.

In order for newly-discovered evidence to merit relief, the claimant must establish each of the following: (1) that the evidence was not available at 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

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(9) that it will probably produce a different result. Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991).


During the post-conviction hearing, there was testimony from one Robert Disney that he, one Tony Fuqua, and Wisehart had set out to burglarize the victim's apartment and when she was unexpectedly found to be home, he saw Wisehart and Fuqua physically attack her and Fuqua (but not Wisehart) stab her several times.

More specifically, Disney testified at the post-conviction hearing that when the threesome entered the victim's apartment, Wisehart grabbed the victim by the arm, spun her around, and put his arm around her neck in a choke hold. Disney testified further that when the victim started to scream, Wisehart said, "[S]omebody shut her up," and Fuqua then punched her in the stomach. (R. at 1386.) 6 Disney continued that the victim then fell to the floor and Wisehart kicked her; that he saw Fuqua but not Wisehart stab her several times; and that after the stabbing, Wisehart directed Fuqua to "get rid of those items" Fuqua used to stab the victim. Disney testified that he himself never touched the victim, that he "just couldn't deal with whatever it was that was going on," and left during the attack.

Officer Moberly, a police detective with major responsibility for investigating the crime, testified at the post-conviction hearing that Wisehart had verified most of the details of a substantially similar account given by Disney in an interview some years after Wisehart's conviction. Moberly also testified that he had come to believe Disney's account.

Also in evidence at the post-conviction hearing was the transcript from Wisehart's trial and police reports related to the investigation of the crimes. 7 This evidence, together with the Disney and Moberly testimony, contains the following additional information relevant to this claim:

1. Prior to his trial, Wisehart confessed to the crimes and accepted sole responsibility for them. He specifically admitted stabbing the victim and did not give any indication but that he had acted alone.

2. Again prior to Wisehart's trial, Fuqua was arrested and charged with assisting a criminal on the basis that he had admitted being outside the apartment while Wisehart was inside committing the crimes.

3. Again prior to trial, Disney was interviewed on several occasions about possible involvement in the crimes. Disney denied involvement and was not considered a suspect.

4. Both Disney and Fuqua were on the State's witness list for trial but neither was called.

5. At trial during the guilt phase, Wisehart presented testimony from Officer Moberly and from another police officer involved in the investigation, both of whom indicated that it was possible that other people were involved in the crime.

6. During the trial but outside the presence of the court, Wisehart was interviewed by the police and told them that he, one Gregory Scott Johnson (no relation to the victim) and a third person had committed the crimes and that it had been Johnson who had stabbed the victim to death. 8 During this session, Wisehart apparently inadvertently

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once indicated that the third person was Disney.

7. During the penalty phase, Wisehart's counsel attempted to present testimony through Moberly that other people may have been involved in the crime as a mitigating circumstance. However, the trial judge refused to allow such evidence to be presented to the jury 9 and no evidence regarding the possible involvement of others was presented to the jury during the penalty phase. During defense counsel's offer to prove in this regard, Officer Moberly indicated that it was now his belief that no one else was involved in the crimes and Dr. Joy, a defense expert witness, testified that Wisehart had told him others were involved. At the sentencing hearing, a defense investigator testified that Wisehart had told the investigator that others were involved in the crime and that Wisehart never struck the victim. 10

8. After Wisehart was convicted and sentenced, the Anderson Police Department continued investigating the crimes. The record shows that during this investigation, Moberly spoke with Disney who again denied involvement. At the post-conviction hearing, Moberly testified that some months later he again spoke to Disney who changed his story and gave Moberly an account substantially the same as that which Disney presented at the post-conviction hearing. The record contains a statement signed by Disney containing an account substantially the same as that which Disney presented at the post-conviction hearing. 11 Moberly testified that he then visited Wisehart in prison 12 and Wisehart "verified" Disney's account. Disney's account remains essentially unchanged from that point forward. But the record indicates that several months later, Moberly again visited Wisehart in prison and Wisehart returned to his account that Johnson was his accomplice and that Johnson had done the stabbing.

9. The record contains a police report dated July 31, 1985, in which Moberly wrote that the Madison County prosecutor had decided not to pursue charges against Fuqua because, "although there was enough to sustain a grand jury indictment, he felt that once in trial, there would not be enough for a conviction as the state could only present Robert Disney, and Fuqua probably would testify and it would be down to which witness would be the most credible. It was felt that because of Disney's appearance and background he would not be the most credible." Moberly also wrote: "This case is now suspended:

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Mark Wisehart is on death row. It is known now that Fuqua and Disney were the other co-conspirators. Fuqua inflicted most of the damage on the victim. Never once have we uncovered any evidence that Wisehart was not involved. Disney will remain to have immunity should he ever testify for the state." (R. at 1256.)

10. As indicated at the outset of this section, Disney and Moberly testified at the post-conviction hearing.


Wisehart contends that the evidence that Disney and Fuqua were involved in the crimes and that Fuqua stabbed the victim constitutes "newly discovered evidence," entitling him to have both his convictions and death sentence set aside. The post-conviction court rejected these claims, finding that this evidence was insufficient to entitle Wisehart to relief from either his convictions or his sentence. As discussed at the outset of this part I, Fox sets forth nine stringent requirements, each of which a claimant must satisfy in order to obtain relief on grounds of newly discovered evidence. 13 Fox, 568 N.E.2d at 1007. We conclude that Wisehart has not satisfied at least three of the Fox requirements. He has not established that the evidence was not available at trial. He has not established that due diligence was used to discover this evidence in time for trial. And he has not established that this evidence would probably produce a different result on re-trial.


By definition, a claim for relief based on newly discovered evidence must not be based on evidence or information of which the claimant had knowledge prior to trial. See United States v. Calderon, 127 F.3d 1314, 1351 (11th Cir.1997), cert. denied sub nom Noa v. United States, --- U.S. ----, 118 S.Ct. 1090, 140 L.Ed.2d 146 (1998). It has long been the rule in this state that "[a] defendant in possession of evidence, who fails to present the evidence...

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