Fox v. State
568 N.E.2d 1006
Ind.
1991
Check Treatment

*1 Sr., FOX, Larry D.

STATE of Indiana.

Supreme Court 19, 1991. Johnson, Loveall Jones A.

Russell Franklin, Johnson, Gen., Gary Da- Pearson, Atty. Linley E. Gen., L. Roger Atty. Secrest, Deputy mon County, Seotts- Duvall, Atty. of Seott Pros. appellee. burg, for REHEARING FOR PETITION DeBRULER, Justice. con- by jury and Fox was tried

Appellant Beyers. She murder victed *2 Hardy in in the waters of Lake Here the trial court received drowned County boating appellant. testimony while Seott affidavits and of several witness es, Fox, Jr., including Larry Ray body injuries legs on the be- Her showed support of the motion to correct ankle, injury to the the knee and tween subjected errors. The two were to cross- arm, and two fresh bruises on the back of prosecutor examination the trial at the asphyx- the head. The cause of was Fox, Jr., hearing. Larry is the fifteen- drowning. forty A sentence of ia due to victim, year-old son of and the af- given. The conviction was Joyce Beyers. provided He an affidavit firmed a divided Court with morning and testified that on the Ap- opinions appearing at 560 N.E.2d 648. death, day of his mother's he heard a loud timely application for a pellant has filed a coming garage. noise from their He ran to rehearing pursuant Appellate to Ind. Rule garage holding and found her 11(A). Appellant part asserts in of her head. then said She that while application that this Court's decision was attempting put jeep, doors on a she rejecting error in his claim that he is enti- fell and struck back of her head and newly trial discover- tled to a new based needed to sit down a little while. He fur ed evidence. ther previously stated that he had not been head, injuries told the details of the newly discovered other than that had struck her in post-trial claim made in a head, interpreted he to mean for a motion to correct errors. Such claim about the face. new trial is authorized Ind.Crim.Rule 16 Davis an affi- Rule and Ind.Trial 56. Wilson v. State davit and testified that he awas construc- (1987), 511 N.E.2d 1014. A motion to worker, newspaper delivery tion had no ground error correct based County, his home in Lawrence and had no newly sup discovered evidence must be telephone. acquainted He was not with the ported by one or more affidavits which family He stated that he must contain a statement of the facts Joyce Beyers learned of the death of at (1) showing the evidence has been Hardy newspaper May from a Lake dated (2) discovered since the it trial 13, 1988, knowledge and that he had no relevant; (8) material it prior of his observations cumulative; (4) merely im it is not 8, April returned trial on (5) peaching; privileged that it is not 7, April studying its verdict on 1988. After (6) incompetent; diligence that due paper days, for several he realized that trial; (7) used to discover it in time for Saturday the death had occurred on the credit; (8) worthy the evidence is it 1986, Easter, when he before ° case; produced upon can be a retrial of the boating mishap a while (9) probably produce that it will a dif- Hardy Lake in his boat. He then contacted family. stated that on that result. Emerson the Fox He dark, day, passed he a fifteen- or ruling In about 259 Ind. 287 N.E.2d 867. occupied by sixteen-foot boat on the piece produce a whether evidence would persons. person He saw "a exit from result, judge may properly a different boat," person the other the back of a while weight consider the that a reasonable trier in the boat was in the front. The boat then and, give doing, of fact it so while point at which the first circled back to may probable impact also evaluate its thought they had fallen out. light trial of all the facts and cir- fun," "playing just having around or original cumstances shown at the trial of way on his into the dock. so continued appeal, the case. Id. On the denial of He was not able to predicated newly motion discovered evi- gender. the boat or their discretionary ruling dence is considered a application for Upon the basis of the deferentially. and is reviewed Hammers (1987), Ind., the affida- rehearing, we turn to reexamine 502 N.E.2d 1339. party to requires newly test also upon which vits at discover diligence aimed due predi- has been show ground discovered uti trial was in time for ing the evidence, to cated, particularly diligence re lized. aforemen- it meets whether determine *3 Here, the the cireumstances. under quired related The observations standards. tioned public open to a lake on occurred incident of place and the time occurred by Davis dark, when at about early spring the State's described drowning as the for the One witness limited. visibility was of the boat description His witnesses. time of fishing at the who was prosecution occupants of its the number and had observed that he drowning testified the by photographs that to identical is evening. that on the lake single boat only a who of others and the boat of lake to the Moreover, His time. same the lake at the near were for unaware county and was another from boat two that the impression of his observations. of the as that same is the having fun and playing a multi- require not would His observation witnesses. by other held inci this to eyewitnesses county search the boat of in the front person was one that Id. dent. the back out fell other that the and of the parts the satisfying to In addition the statement to corresponds boat of the above, evidence the new indicated as test shortly police to the given the re- satisfying qualities has those also he was he said in which incident the after test, namely, that the parts of maining two when, preparation the boat operating that and such credit worthy of it be to Beyer went dark, Joyce landing in the result retrial, probably it will searchlight get to the boat of the back appears verdict. in a different the starter to attached to be unaeq- one, being independent to be long electrical twenty-foot battery with alleged vic- family of the the uainted dis- and Thereafter, back he looked cord. personal having no and tim or then circled gone and she was covered prosecution. the of in the outcome interest operated The boat her. to find exag- to inclination no shows witness The front. steering wheel aby recollec- of his worth probative the gerate search- that the testified the boat of owner having had beer admitting tion, willingly of boat. kept in light was to being unable and occasion in the boat. of the two gender evi- of Upon reconsideration supports the only not dence, that it find we differ of a probability A sufficient accident, but theory defense where present retrial is upon result ent visual of direct result is the alone that it reasonable creates omitted falling actually the victim observation Loyd v. exist. not otherwise did doubt is dif- value probative Its the boat. from 1260. N.E.2d 398 Ind. (1980),272 other witnesses than the Court reached view The new from sounds heard who new the scene rehearing this course activities relevant not see did corresponds but above indicated as state initial engaged closely with the boat until the lake employed being light was circling operating and he was police ment to As dock surrounding water. return illuminating the to preparing and boat rear of went Beyers not Joyce at trial when such, Davis evidence he then beyond light, goes It equal. the search get an added simply be looking around upon something and heard or cumulative. impeaching merely being in the boat. she was saw N.E.2d Francis the in doubt serious materiality is evi- casts relevance Its 1385. feloniously assaulted ference after trial discovery dent, is its inor in the boat either Beyers lack privilege No retrial. availability on rise drown, gives water, causing her is involved. competence guilt. appli- doubt of to a reasonable granted, judg-

cation for TRAVER, Randy reversed, ment of the Court and this remanded for a new trial. cause is STATE of KRAHULIK, JJ., DICKSON

concur. Supreme Court Indiana.

SHEPARD, C.J., dissents.

GIVAN, J., dissents with *4 SHEPARD, C.J., joins.

opinion in which Justice,

GIVAN, dissenting. granting

I respectfully dissent from the petition in this case. original majority opin-

As stated

ion, I the trial court did not believe abuse denying

its discretion in the Motion to Cor-

rect Error. Even one fills the deficien- the majori-

cies of the affidavit of do,

ty is wont to we still have a situation materially

which does not deviate If jury. one as-

sumes that Davis fact did see operation

boat in and did the dece- observe thereof,

dent fall from the this does gainsay the circumstantial

that the victim was stunned a blow to

the head delivered and that so

stunned, she fell back of the boat

being operated high speed by appellant. original majority opin-

As set forth

ion, other witnesses heard the cries of the through

victim as the boat

water and observed the return to the apparently

location where the fell. victim

They light being also observed a search I nothing

shown on the water. see Fox, Larry

affidavit of D. or in the Jr.

affidavit of Davis that contradicts the already

evidence which has been heard that convicted deny petition rehearing.

I would

SHEPARD, C.J., concurs.