MEMORANDUM DECISION                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Jul 07 2016, 8:27 am

this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
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court except for the purpose of establishing
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ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Frances Lee Watson                                        Gregory F. Zoeller
Law Clinic                                                Attorney General of Indiana
Indianapolis, Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kendrick Morris,                                          July 7, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1511-PC-2014
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Amy Barbar, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G02-0105-PC-108789



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016            Page 1 of 13
                                Case Summary and Issue
[1]   Following a jury trial, Kendrick Morris was convicted of attempted murder,

      aggravated battery, and unlawful possession of a firearm by a serious violent

      felon. The trial court sentenced Morris to sixty years executed in the Indiana

      Department of Correction. On direct appeal, we affirmed Morris’s convictions.

      Morris v. State, No. 49A05-0205-CR-225, slip op. at 2–4 (Ind. Ct. App. Feb. 5,

      2003) (“Morris I”). Thereafter, we affirmed the denial of post-conviction relief.

      Morris v. State, 49A02-0610-PC-880, slip op. at 9 (Ind. Ct. App. Jan. 30, 2008)

      (“Morris II”), trans. denied. In 2014, with the permission of this court, Morris

      filed a second petition for post-conviction relief, arguing newly discovered

      evidence warranted a new trial. Following an evidentiary hearing, the post-

      conviction court denied Morris’s petition. Morris now appeals, raising the sole

      issue of whether the post-conviction court erred in concluding an eyewitness’s

      recantation of trial testimony identifying Morris as the shooter did not

      constitute newly discovered evidence sufficient to warrant a new trial.

      Concluding the post-conviction court did not err, we affirm.



                            Facts and Procedural History
[2]   We summarized the facts of this case in Morris’s direct appeal.


              On April 14, 2001, then thirteen-year-old Tiara McGinty was
              about to leave her home on Carrollton Avenue in Indianapolis
              when she observed two men dressed in black, hooded shirts
              standing on the porch holding guns. The front door of the
              residence was open but the screen door was closed. Tiara was

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 2 of 13
        standing inside the house behind the screen door when the men
        began shooting at the door. Tiara turned to fall on the ground,
        and the men shot her in the legs and back. One bullet entered
        one of her thighs and exited out the other thigh. Another bullet
        entered her back, hit her lung, bruised her heart, broke her rib, hit
        her liver and lodged in her stomach. She had surgery to remove
        the bullet in her stomach and was hospitalized for eighteen days.


        During an interview with Indianapolis Police Detective Jeffrey
        Wager, Tiara identified Morris as one of the shooters. Detective
        Wager later interviewed LeShaun Mickens, Tiara’s cousin and
        an eyewitness to the shooting. During an audiotaped statement,
        Mickens also identified Morris as one of the shooters.


        The State charged Morris with attempted murder, aggravated
        battery, and unlawful possession of a firearm as a serious violent
        felon. At trial, Mickens repudiated her out-of-court statement
        and stated that she could not identify the persons involved in the
        shooting. She further testified that Detective Wager told her the
        identity of the shooters and asked her to lie.


        At that point, the State sought to introduce Mickens’s out-of-
        court statement. Morris’s counsel moved to suppress the
        statement, alleging that it was coerced, was improper
        impeachment evidence, and, contrary to the State’s contention,
        was not admissible under Indiana Evidence Rule 801(d). The
        court held a hearing outside the jury’s presence, listened to the
        taped statement, and heard testimony from Detective Wager.
        Following the hearing, the court found that Mickens’s statement
        was not coerced and admitted the tape into evidence.
        Subsequently, the State played the tape for the jury. Then,
        during the State’s direct examination of Detective Wager, he
        testified regarding his May 14, 2001 interview with Mickens and
        the statement he took from her. Morris’s counsel objected on the
        same grounds articulated during the suppression hearing, and the
        trial court allowed the detective’s testimony.
Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 3 of 13
              Larry Beverly and Anthony McGinty also testified at trial.
              Beverly testified, in relevant part, that he often stayed at the
              residence on Carrollton Avenue where Tiara was shot. He
              further stated that he knew Morris and the other co-defendants
              and that prior to the shooting, he had told them not to come to
              the residence on Carrollton Avenue anymore. The State asked
              Beverly whether Morris and the others were angry when he told
              them not to come around the house, and Beverly stated that they
              were not. The State then used two pretrial statements Beverly
              had given to police to impeach his testimony.


              McGinty testified, in part, that he is Tiara’s uncle and lives at the
              Carrollton Avenue residence. He explained that the defendants
              had stayed overnight at his house on several occasions. He also
              testified that the day before the shooting, he told Morris and the
              other two defendants that they could not come over to his house
              anymore. When McGinty denied the State’s suggestion that he
              backed the defendants “out onto [his] front porch” and told them
              they could not come over, the State used a pretrial statement
              McGinty had given to an officer to impeach his statement.
              McGinty also denied making a statement to the officers that
              Morris and the defendants were mad when he told them they
              could not come to his house anymore. Again, the State
              impeached his testimony with a pretrial statement. Morris’s
              counsel did not object to the State’s use of Beverly and
              McGinty’s pretrial statements. The jury found Morris guilty as
              charged[.]


      Morris I, slip op. at 2-4 (alterations in original). We affirmed Morris’s

      convictions, and in Morris II, affirmed the post-conviction court’s denial of post-

      conviction relief.


[3]   On August 27, 2014, Morris filed a Successive Petition for Post-Conviction

      Relief, alleging the victim, Tiara McGinty, recanted her trial testimony at an

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 4 of 13
evidentiary hearing on a petition for post-conviction relief filed by Wesley

Young, a co-defendant. See Young v. State, No. 49A02-1209-PC-753, slip op. at

5-6 (Ind. Ct. App. July 10, 2013), trans. denied. The post-conviction court held

an evidentiary hearing at which Tiara testified she was coerced by police into

identifying Morris as one of the shooters and claimed she never truly knew the

identity of the perpetrators. On October 27, 2015, the post-conviction court

entered its findings of fact and conclusions, denying Morris post-conviction

relief:


                                         Findings of Fact


                                                 ***

          7. At the evidentiary hearing, Tiara McGinty testified that at the
          time of the shooting she was thirteen years old. She
          acknowledged that she identified [Morris] several times at the
          trial of this case on direct questioning by the State and in the face
          of cross-examination by [Morris’s] and his co-defendants’ trial
          counsels. Regardless, Ms. McGinty maintained that her previous
          identifications were lies, and that she “knew in her heart” that
          Morris was not one of the shooters, because of his prior personal
          association with her.


          8. The Court finds that in her trial testimony Ms. McGinty also
          acknowledged that she had identified [Morris] to detectives
          shortly after the shooting, in a taped statement to Det. Wager
          after she was out of hospital, and in a taped statement to
          [Morris’s] counsel (Allan Reid) before trial. She corrected Mr.
          Reid in his cross-examination as follows: “[Did you] [t]ell Det.
          Wager they had black masks on their faces?” McGinty: “Just
          one.” She testified the statement was wrong that “they” had
          masks, because “it was only on one face.” She testified “I saw
Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 5 of 13
          his face because he had—he just had his forehead covered up.”
          She was asked on re-direct “Do you have any doubt . . . that
          Kendrick Morris is the person that you saw?” “I have no doubt.”
          Further, she clearly identified each of the three defendants as
          someone she knew, but she was equally clear that [Morris] was
          the only person she could identify as a shooter.


          9. The Court finds that at the February 15, 2012 evidentiary
          hearing in co-defendant Wesley Young’s PCR, Ms. McGinty
          also repudiated her previous identification. She initially testified
          that she was told who to identify by Det. Wager. On further
          questioning, she stated that “[H]e basically told me that the three
          men that was in question was the ones who shot me.”
          Ultimately, Ms. McGinty claimed that in fact she did not identify
          Morris or anyone as a shooter, instead she claimed that, “The
          only reason that I identified them . . . he didn’t say identify the
          shooters, he asked me ‘did I know these men’. So by knowing
          these men I could identify them. He gave me those papers and
          asked me to identify these men and of course I could identify
          them, because I know them, but I didn’t say I identify them as
          shooters.”


          10. Det. Wager testified at the PCR hearing that he showed
          Tiara photo arrays the second time he talked to her, at her
          grandmother’s. [Morris], Wesley Young, and Steven Kendall
          had been established as suspects through Tiara’s grandmother
          and uncle, Anthony McGinty. He asked her if she recognized
          anyone in the pictures. He then asked if she recognized anybody
          here that shot her. She told him she was looking in “the eyes of
          her shooter and it was Kenny Mack.”[1]




1
    Tiara knew Morris by the nickname of Kenny Mack.


Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 6 of 13
                                       Conclusions of Law


                                                ***


        2. [Morris] claims that Tiara McGinty’s repudiation of her trial
        testimony is newly discovered evidence which mandates a new
        trial. There is a nine-part test for determining whether to grant a
        new trial based on newly discovered evidence . . . .


        ***


        Initially, the cort [sic] finds that the proffered evidence fails to
        meet the fourth prong. In the context of this case, the only real
        function of Tiara McGinty’s repudiation of her prior testimony is
        to undermine her credibility. An analysis of the testimony at trial
        and at the evidentiary hearing reveals substantial evidence that
        belies McGinty’s repudiation of her prior testimony. McGinty
        gave essentially the same statements to the police during the
        investigation, she testified consistently in her discovery
        statement, and she repeated her testimony at trial under direct
        and cross examination. Consequently, the Court finds the
        proffered testimony is merely impeachment.


        The Court finds that Tiara McGinty’s proffered testimony is not
        worthy of credit, and therefore fails the seventh prong of the test.
        Whether a witness’s testimony at a post-conviction hearing is
        worthy of credit is a factual determination to be made by the trial
        judge who has the opportunity to see andhear [sic] the witness
        testify. As previously noted, Ms. McGinty’s testimony at the
        evidentiary hearing directly contradicts her testimony and
        statements at trial, and in discovery. McGinty accuses law
        enforce ment [sic] of misleading and coercing her into making
        false statements, however, she did not repudiate her very
        unequivocal identification at trial, nor even in her discovery
        statement, when she made no claim of trickery. The Court finds

Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 7 of 13
        its [sic] rather incredible that under these circumstances, even a
        thirteen year old would so profoundly misunderstand the
        questions put to her by a police detective. She did not explain
        why she only identified [Morris], even though she repeatedly
        acknowledged knowing all three men, and presumably flet [sic]
        just as “coerced” by the police to name all three as participants in
        the crime. She never said the police “coercion” was aimed
        specifically at [Morris] or anyone else. The Court finds it telling
        that while she acknowledged making essentially the same
        statements to [Morris’s] trial counsel, she does not claim any
        coercion on the attorney’s part. Therefore the Court finds that
        Tiara McGinty’s proffered repudiation lacks credibility and thus
        fails the seventh prong.


        Finally, the Court finds that the proffered testimony is unlikely to
        produce a different result at a putative re-trial, and consequently
        the proffer fails the ninth prong. In determining whether new
        evidence would produce a different result in a new trial, the trial
        court may consider the weight that a reasonable jury wuld [sic]
        give it and may evaluate the probable impact the evidence would
        have in a new trial considering the facts and circumstances
        shown at the first trial. Although it is generally the duty of the
        jury to determine the credibility of the witnesses, on a motion for
        a new trial based on newly discovered evidence, the trial court
        must assess the credibility of any proffered new evidence. The
        Court has already stated its opinion on the credibility of the
        repudiation. [Morris] argues that in the absence of her
        identification, there is no basis for conviction. While McGinty’s
        testimony might be impeached at a new trial, it would also be
        subject to rehabilitation, and thus the new testimony would not
        necessarily be destructive of the State’s case. Further, the
        presence [or] absence of corroboration is not in and of itself
        controlling.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 8 of 13
      Appellant’s Appendix at 28-32 (some alterations in original) (internal quotation

      marks and citations omitted). This appeal ensued. Additional facts will be

      provided as necessary.



                                 Discussion and Decision
                                      I. Standard of Review
[4]   “Post-conviction proceedings do not afford the petitioner an opportunity for a

      super appeal, but rather, provide the opportunity to raise issues that were

      unknown or unavailable at the time of the original trial or the direct

      appeal.” Turner v. State, 974 N.E.2d 575, 581 (Ind. Ct. App. 2012), trans.

      denied. Post-conviction procedures create a narrow remedy for subsequent

      collateral challenges to convictions. Id. The petitioner must establish his claims

      by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).


[5]   A petitioner who has been denied post-conviction relief faces a “rigorous

      standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

      In reviewing the judgment of a post-conviction court, we consider only the

      evidence and reasonable inferences supporting the judgment. Hall v. State, 849

      N.E.2d 466, 468 (Ind. 2006). We may not reweigh the evidence or reassess the

      credibility of the witnesses. Id. at 468-69. The post-conviction court’s denial of

      post-conviction relief will be affirmed unless the evidence leads “unerringly and

      unmistakably to a decision opposite that reached by the post-conviction

      court.” McCary v. State, 761 N.E.2d 389, 391 (Ind. 2002). Only where the

      evidence is without conflict and leads to but one conclusion, and the post-
      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 9 of 13
      conviction court reached the opposite conclusion, will the court’s findings or

      conclusions be disturbed as being contrary to law. Hall, 849 N.E.2d at 469.

      Finally, we do not defer to the post-conviction court’s legal conclusions, but do

      accept its factual findings unless they are clearly erroneous. Ind. Trial Rule

      52(A); Stevens v. State, 770 N.E.2d 739, 746 (Ind. 2002), cert. denied, 540 U.S.

      830 (2003).


                             II. Newly Discovered Evidence
[6]   Morris argues the post-conviction court erred in denying his request for a new

      trial based on newly discovered evidence. Evidence will mandate a new trial

      only when the petitioner demonstrates (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 upon a retrial of the case, and (9) it will probably produce a

      different result at retrial. Carter v. State, 738 N.E.2d 665, 671 (Ind. 2000). The

      post-conviction court concluded Morris did not satisfy prongs four, seven, and

      nine. On appeal, we “analyze[] these nine factors with care, as ‘[t]he basis for

      newly discovered evidence should be received with great caution and the

      alleged new evidence carefully scrutinized.’” Id. (second alteration in original)

      (quoting Reed v. State, 508 N.E.2d 4, 6 (Ind. 1987)). The burden of showing that

      all nine requirements are met rests with the petitioner. Taylor v. State, 840

      N.E.2d 324, 330 (Ind. 2006).



      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 10 of 13
[7]   Morris has not shown Tiara’s testimony satisfies the requirements noted above.

      Most apparent, Tiara’s recantation testimony is merely impeaching of her own

      trial testimony. At the post-conviction hearing, the premise of Tiara’s

      testimony served to support the notion she lied during an interview with

      Detective Wager, an interview with Morris’s trial counsel, and again when she

      testified at trial. We fail to see how using Tiara’s recantation testimony to show

      she lied before and during trial would be anything other than impeaching and

      conclude Tiara’s testimony at the evidentiary hearing only serves to undermine

      her own credibility. See id. (concluding a witness’s affidavit stating he lied

      during trial did not constitute newly discovered evidence because the affidavit

      would show the witness was merely lying at trial thereby undermining his own

      credibility). The post-conviction court’s finding that Morris did not satisfy the

      fourth prong of the test for newly discovered evidence is not clearly erroneous.

      Because Morris cannot satisfy at least one of the prongs noted above, the post-

      conviction court did not err in denying Morris relief.


[8]   Although not necessary for this appeal, we further note the post-conviction

      court did not err in concluding Morris also did not satisfy the seventh and ninth

      prongs. As noted above, Tiara now claims Detective Wager coerced or tricked

      her into identifying Morris as one of the shooters. Detective Wager testified at

      the evidentiary hearing he made clear to Tiara that, in identifying Morris, she

      was identifying one of the shooters, not just an acquaintance. See Hall, 849

      N.E.2d at 468-69 (noting we will not reassess witness credibility). Given

      Detective Wager’s testimony and the fact Tiara consistently identified Morris as


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 11 of 13
      one of the shooters during her interview with Morris’s counsel, the State’s direct

      examination, and three separate cross-examinations—occurrences in which she

      does not claim she was tricked or coerced—we conclude the trial court’s finding

      that Tiara’s recantation testimony cannot be considered worthy of credit is not

      clearly erroneous.


[9]   As to the ninth prong, in determining whether newly discovered evidence

      would likely produce a different result at a new trial, the post-conviction court

      may consider the weight a reasonable trier of fact would give the evidence and

      may evaluate the probable impact the evidence would have in a new trial

      considering the facts and circumstances shown at the original trial. Nunn v.

      State, 601 N.E.2d 334, 337 (Ind. 1992). The newly discovered evidence must

      raise a strong presumption a new trial would achieve a different result. Id.

      Here, we note even if Tiara testified at a new trial, the State would have an

      opportunity to rehabilitate her testimony not only by introducing her prior

      testimony, but also her multiple consistent statements made before trial

      identifying Morris as one of the shooters. Finally, we note Tiara was not the

      only eyewitness. Prior to trial, Mickens also identified Morris as one of the

      shooters in an audiotaped statement, which the State admitted as substantive

      evidence under Evidence Rule 801(d) after Mickens repudiated her

      identification of Morris at trial.2 Therefore, we are not persuaded Tiara’s




      2
       On direct appeal, Morris challenged the admission of Mickens’s prior statement identifying Morris as one
      of the shooters. We found no error. See Morris I, slip op. at 7.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016           Page 12 of 13
       testimony raises a strong presumption a new trial would achieve a different

       result.


[10]   Accordingly, the post-conviction court did not err in denying Morris’s petition

       for post-conviction relief.



                                               Conclusion
[11]   The post-conviction court’s finding that Morris did not establish Tiara’s

       recantation was newly discovered evidence sufficient to warrant a new trial is

       not clearly erroneous. Accordingly, we affirm.


[12]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-PC-2014 | July 7, 2016   Page 13 of 13
