MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Jul 12 2018, 10:03 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
Sonny Davis                                               Curtis T. Hill, Jr.
Westville, Indiana                                        Attorney General of Indiana
                                                          Monika Prekopa Talbot
                                                          Supervising Deputy Attorney
                                                          General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sonny Davis,                                              July 12, 2018
Appellant-Petitioner.                                     Court of Appeals Case No.
                                                          49A05-1710-PC-2328
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G01-0208-PC-211427



Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018             Page 1 of 21
[1]   Sonny Davis (“Davis”) appeals the denial of his petition for post-conviction

      relief. He raises a number of issues which we consolidate and restate as:


            I.    Whether he was denied effective assistance of trial and
                  appellate counsel; and

           II.    Whether he is entitled to a new trial due to newly discovered
                  evidence.

      We affirm.


                                      Facts and Procedural History

[2]   Davis dated Christina Light for a year and a half. Davis v. State, No. 49A05-

      0303-CR-140, slip op. at 2 (Ind. Ct. App. December 18, 2003), trans. denied. On

      August 8, 2002, Light went to stay with her aunt after having a problem with

      Davis. Id. Davis told Light’s aunt Light was a “lying bitch” and he would

      come over and “beat the heck” out of her. Id. Light’s aunt became afraid of

      Davis and asked Light to leave her home. Id. Light went to the house of her

      cousin Amy Heady (“Amy”) and asked Amy’s boyfriend, Kevin Milliner, to

      say that Light was not at home if Davis called. Id. Davis called several times,

      and both Amy and Milliner told Davis that Light was not home. Id. Sometime

      later, Davis went to Amy’s residence, walked in despite being told Light was

      not present, found Light hiding under a bed, pulled her out by her hair, hit her

      on her back with a drill, held her down, repeatedly hit her on the head with a

      hammer, kept asking Light for the keys to the truck they co-owned, found the

      keys in Light’s pocket, continued hitting Light, and eventually left. Id. at 2-3.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 2 of 21
[3]   The State charged Davis with attempted murder, burglary as a class A felony,

      robbery as a class A felony, aggravated battery as a class B felony, criminal

      confinement as a class B felony, two counts of battery as class C felonies,

      intimidation as a class D felony, criminal recklessness as a class D felony,

      domestic battery as a class A misdemeanor, battery as a class A misdemeanor,

      and interference with reporting a crime as a class A misdemeanor. Id. at 3. The

      State later alleged Davis was an habitual offender. Id.


[4]   At trial, the prosecutor asked Indianapolis Police Officer Joseph Wells to

      describe his conversation with Light on her porch, and Davis’s trial counsel

      objected on the basis of hearsay. The court overruled the objection and noted

      Davis’s continuing objection. Officer Wells testified that Light told him that

      her ex-boyfriend came over to the residence and that Davis kicked in the door

      of the residence, entered the residence with a man named Antwan who held a

      gun on everybody, and started beating her with his fist.


[5]   The prosecutor asked Paramedic Lisa Warren on direct examination what

      Light had said to her about how she had been injured, and Davis’s counsel

      objected on the basis of hearsay. The court overruled the objection to the extent

      it related to the identity of Light’s attacker. Warren testified that Light “did not

      say a name – she just said ‘he did it,’” and when asked who “he” was in

      relation to Light, Warren answered: “A boyfriend.” Trial Transcript Volume I

      at 62.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 3 of 21
[6]   A hearing was held outside the presence of the jury during which the court

      asked Light if she understood that Davis would like to call her as a witness in

      his case-in-chief, and Light indicated she understood. The court invited Davis’s

      counsel to ask Light questions, and Light’s counsel stated that Light had Fifth

      Amendment rights that supersede her ability to answer any questions from

      Davis’s counsel or from the State. The court stated: “Why don’t we let her hear

      what the questions are and then you can advise her. What would your

      questions be, [Davis’s counsel].” Id. at 187. In response to questions by

      Davis’s counsel, Light stated that “[s]ome guy” with the street name of Beedaw

      struck her with a hammer, that she did not know his name, and that she told

      the police that Davis injured her because she wanted to see him locked up

      because she “found him cheating on [her] with somebody else.” Id. at 188.

      Light’s counsel stated that he was advising her not to answer these questions

      because it would lead to charges being filed. The court asked Light if she

      understood that the State had filed charges for obstruction of justice and that

      the State intended to prosecute her on those charges based upon the testimony

      she gives, and Light answered affirmatively. Light indicated that she did not

      want to testify and that she was going to exercise her Fifth Amendment

      privilege. Upon further questioning by Davis’s counsel, Light stated that she

      recognized a letter that she wrote to the prosecutor that was marked for

      identification purposes as Defendant’s Exhibit A. Light’s counsel stated that

      Light was not competent, that Light had already invoked her rights under the

      Fifth Amendment twice since they began, and, after further discussion,

      indicated that Light was exercising her Fifth Amendment privilege.
      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 4 of 21
[7]   After the State rested, Davis’s counsel moved for a directed verdict on some of

      the counts, and the court granted the motion with respect to Count XII and

      denied the request with respect to the other counts. Davis’s counsel called

      Light, and the court questioned her outside the presence of the jury and in the

      presence of Light’s attorney. The court found Light to be a competent witness.

      Upon questioning by the court, Light indicated she understood that if she

      testified, there was the possibility she could give statements that would

      incriminate her in pending criminal cases, that she wanted to testify, and that

      she acknowledged her attorney’s advice was to exercise her Fifth Amendment

      privilege. The prosecutor explained that Light potentially faced charges of

      obstruction of justice as a class D felony, assisting a criminal as a class C felony

      for attempting to procure statements from Amy and Milliner, and perjury as a

      class D felony for each falsehood for “potential penalties up to maybe fifteen

      years.” Trial Transcript Volume II at 344. The prosecutor also stated that

      Light should be advised that she was involved in Child Protective Services

      matters with her children and that the prosecutor did not know what effect, if

      any, any convictions would have on those hearings. When asked by the court if

      she wanted to testify, Light answered: “Yeah – I mean – all I want to say is he

      didn’t do it.” Id. The court stated that Light wished to testify. The prosecutor

      asked if Light understood that she would be answering the prosecutor’s

      questions as well, and, when asked by the court, Light indicated that she

      understood. Light then stated “can I plead the Fifth . . . .” Id. at 345. When

      asked by the court if she wanted to “plead the Fifth,” Light answered

      affirmatively. Id. After further discussion, the court asked Light if she wished
      Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 5 of 21
       to exercise her Fifth Amendment Privilege, and Light answered “Fifth

       Amendment.” Id. at 347.


[8]    Davis’s counsel then indicated that he would like to offer into evidence

       Defendant’s Exhibit A, which was the statement Light had previously testified

       was a true and accurate copy of the statement she submitted to the State. After

       some discussion, the court did not admit Defendant’s Exhibit A.


[9]    Davis testified that he had been dating Light for about a year and a half and

       was involved romantically with her on August 8, 2002. He testified that he had

       a date with Toya on August 8, 2002, he could not remember Toya’s last name,

       and Light came over at dinner time and became upset due to Toya’s presence.

       He stated that Light paged him, they talked on the phone, Light asked him for

       money, he felt there was something wrong from the tone of her voice, he went

       to check on her, he discovered blood all over the house, Light told him to leave,

       and he left and went to 1814 Rural. On cross-examination, Davis indicated

       that State’s Exhibit 6 reflected that thirty calls were placed from his residence to

       Barbara Heady’s residence and close to ten calls were placed to Amy’s

       residence, that he stated earlier that he was at his residence with Toya that day,

       and that Toya was not present at the trial.


[10]   The court admitted a Petition to File Belated Notice of Alibi Defense filed by

       Davis on October 4, 2002, as State’s Exhibit 33. The petition alleged that Davis

       was at the Rural Inn, located at 2725 E. Michigan Street in Indianapolis, at

       11:40 p.m. on August 8, 2002, the date and time that the offense occurred.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 6 of 21
       Davis had also filed a list of witnesses including Shanisha Crenshaw, Johnny

       Davis, and Melissa LNV. On cross-examination, Davis indicated that he had

       just testified that he was not at the Rural Inn and that none of the witnesses

       listed in his petition to file a belated notice of alibi were present at the trial.


[11]   The jury was unable to reach a verdict on the charge of attempted murder and

       acquitted Davis of battery. Davis, slip op. at 3. He was convicted of the nine

       other counts. Id. The trial court sentenced him to fifty years for burglary,

       twenty years for aggravated battery, and a thirty-year habitual offender

       enhancement on the aggravated battery conviction. Id.


[12]   On direct appeal, Davis challenged his burglary conviction and argued that the

       trial court’s instruction regarding the element of “breaking” violated his due

       process rights under the Fourteenth Amendment to the United States

       Constitution and Article 1, Section 19 of the Indiana Constitution. Id. at 4. He

       also argued that the instruction contained a mandatory presumption. Id. at 6.

       We agreed that a portion of the instruction defining “breaking” was incorrect,

       held that the erroneous language was harmless, and affirmed. Id. at 5-6.


[13]   On March 26, 2015, Davis filed an amended petition for post-conviction relief

       alleging that his trial and appellate counsel were ineffective and new evidence

       existed which would likely result in a different result on retrial. On May 12,

       2015, the court held an evidentiary hearing at which Davis was represented by

       counsel. James Denning testified that he witnessed “Johnny striking the lady in

       the head with the hammer” on August 8, 2002, and that the man’s full name


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 7 of 21
       was “Johnny House.” Post-Conviction Transcript Volume II at 18. When

       shown Petitioner’s Exhibit A, a booking information sheet listing an

       individual’s “Name” as “DAVIS JOHNNY,” “Person Name” as “JOHNNY

       HOUSE,” and “Aliases” as “DAVIS, JOHNNY,” Petitioner’s Exhibit A,

       Denning stated that person was Johnny House. He testified that he and Johnny

       were hanging out that day when “Tanisha” picked up him and Johnny and

       took them to a house which Johnny entered and stayed for five or six minutes.

       Post-Conviction Transcript Volume II at 21. He testified that a woman ran out

       of the house screaming, “Help, help. They were fighting. Help break up the

       fight.” Id. at 23. According to Denning’s testimony, he then saw Johnny

       striking a lady in the head numerous times with a hammer, Johnny ran out

       screaming, “I got the keys, I got the keys, let’s go,” he and Johnny entered a

       black Chevy S-10, and Johnny dropped him off at his home. Id. at 24.

       Denning testified that he had not seen Johnny since then until he was walking

       through a unit of the Wabash Valley Jail in 2012 when he saw Johnny and said,

       “Johnny, what’s up,” and the man responded, “I’m not Johnny.” Id. at 25.

       Denning identified Davis as the person he ran into in prison. He acknowledged

       that he was currently serving a sentence for attempted robbery.


[14]   Amy testified that she had previously testified that Davis had beaten Light. She

       indicated that the photograph of the person in Petitioner’s Exhibit A looked like

       Davis. Davis’s counsel asked Amy if it was possible that the person she

       believed back in August 2002 to be Davis could have been Johnny House, the

       prosecutor objected, and the court sustained the objection. Milliner stated that


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 8 of 21
       he testified at trial that he witnessed Davis and that he saw Davis for two or

       three minutes. He also testified that the person in Petitioner’s Exhibit A looked

       like Davis.


[15]   Tanisha Whiteside testified she knew Denning in 2002, Denning came to her

       with Johnny, asked her to drop them off, and told her he had to “go over there

       and handle some things.” Id. at 42. She testified that she dropped them off,

       Denning and Johnny went into the home at the same time, she heard yelling

       and talking, and she pulled away. She testified that she realized that she had

       information that would have been important to Davis’s situation “just last year”

       when she was at a family dinner where Davis’s sister was present and she saw

       pictures of Davis. Id. at 46.


[16]   Davis testified that he did not have any way of knowing that Denning was at

       the scene, he was segregated from Light, and had no phone and mail privileges,

       and did not know Amy or Milliner. He also testified that his brother was in

       prison in Arizona and it was not likely that his brother would be brought in as a

       witness and admit that he did this offense.


[17]   On March 8, 2016, the court held a hearing at which Davis appeared pro se.

       Davis called Light as a witness, the prosecutor asked to know the theory for

       which Davis wished to call Light, and Davis stated in part that Light would

       testify that “it wasn’t me, she tried to tell them that it wasn’t me, that she was

       threatened the whole time.” Id. at 62. The prosecutor then objected, asserted in

       part that it would provide the court with “a certified copy of a conviction under


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 9 of 21
       – of [Light] for obstruction of justice that occurred after this for events arising

       directly out of this case in which she pled guilty to obstruction of justice.” 1 Id.

       at 63. The court stated that Light’s statement was already on the record when

       the trial court “went through all of this” and sustained the prosecutor’s

       objection. Id. at 65.


[18]   The State presented the testimony of Kristina Korobov who stated that she was

       a deputy prosecutor in the Marion County Prosecutor’s office in 2002 and 2003,

       she remembered the case very well, and the only meeting she had with Light

       occurred with Light’s attorney. She testified that she believed the prosecutor’s

       office had served Light with a subpoena for a deposition, Light failed to appear,

       and the court may have become “involved in getting her to come to court.” Id.

       at 69. Korobov testified that she believed some witnesses stated threats came

       from Light and that Light was charged with and ultimately pled guilty to

       obstruction of justice. Detective Reidenbach testified that he investigated this

       case, spoke with Amy and Milliner on August 9, 2002, they were both clear in

       identifying Davis, and they were able to identify Davis based upon their prior

       experience with him. The court admitted the police report from Davis’s arrest

       as State’s Exhibit 1, which stated in part that Davis gave the name of Johnny

       Davis and that his fingerprints came back as belonging to Davis. On September

       19, 2017, the post-conviction court denied Davis’s petition.




       1
        State’s Post-Conviction Exhibit 2 contains an abstract of judgment indicating that Light was convicted of
       obstruction of justice as a class D felony in 2003.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018           Page 10 of 21
                                                    Discussion

[19]   Before addressing Davis’s allegations of error, we observe that Davis is

       proceeding pro se. Such litigants are held to the same standard as trained

       counsel. Evans v. State, 809 N.E.2d 338, 344 (Ind. Ct. App. 2004), trans. denied.

       We also note the general standard under which we review a post-conviction

       court’s denial of a petition for post-conviction relief. The petitioner in a post-

       conviction proceeding bears the burden of establishing grounds for relief by a

       preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004);

       Ind. Post-Conviction Rule 1(5). When appealing from the denial of post-

       conviction relief, the petitioner stands in the position of one appealing from a

       negative judgment. Fisher, 810 N.E.2d at 679. On review, we will not reverse

       the judgment unless the evidence as a whole unerringly and unmistakably leads

       to a conclusion opposite that reached by the post-conviction court. Id. “A post-

       conviction court’s findings and judgment will be reversed only upon a showing

       of clear error – that which leaves us with a definite and firm conviction that a

       mistake has been made.” Id. In this review, we accept findings of fact unless

       clearly erroneous, but we accord no deference to conclusions of law. Id. The

       post-conviction court is the sole judge of the weight of the evidence and the

       credibility of witnesses. Id.


                                                          I.


[20]   The first issue is whether Davis was denied effective assistance of trial and

       appellate counsel. Generally, to prevail on a claim of ineffective assistance of

       counsel a petitioner must demonstrate both that his counsel’s performance was
       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 11 of 21
       deficient and that the petitioner was prejudiced by the deficient performance.

       French v. State, 778 N.E.2d 816, 824 (Ind. 2002) (citing Strickland v. Washington,

       466 U.S. 668, 104 S. Ct. 2052 (1984), reh’g denied). A counsel’s performance is

       deficient if it falls below an objective standard of reasonableness based on

       prevailing professional norms. Id. To meet the appropriate test for prejudice,

       the petitioner must show that there is a reasonable probability that, but for

       counsel’s unprofessional errors, the result of the proceeding would have been

       different. Id. A reasonable probability is a probability sufficient to undermine

       confidence in the outcome. Perez v. State, 748 N.E.2d 853, 854 (Ind. 2001).

       Failure to satisfy either prong will cause the claim to fail. French, 778 N.E.2d at

       824. Most ineffective assistance of counsel claims can be resolved by a

       prejudice inquiry alone. Id.


[21]   When considering a claim of ineffective assistance of counsel, a “strong

       presumption arises that counsel rendered adequate assistance and made all

       significant decisions in the exercise of reasonable professional judgment.”

       Morgan v. State, 755 N.E.2d 1070, 1072 (Ind. 2001). “[C]ounsel’s performance

       is presumed effective, and a defendant must offer strong and convincing

       evidence to overcome this presumption.” Williams v. State, 771 N.E.2d 70, 73

       (Ind. 2002). Evidence of isolated poor strategy, inexperience, or bad tactics will

       not support a claim of ineffective assistance of counsel. Clark v. State, 668

       N.E.2d 1206, 1211 (Ind. 1996), reh’g denied, cert. denied, 520 U.S. 1171, 117 S.

       Ct. 1438 (1997). “Reasonable strategy is not subject to judicial second

       guesses.” Burr v. State, 492 N.E.2d 306, 309 (Ind. 1986). We “will not lightly

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 12 of 21
       speculate as to what may or may not have been an advantageous trial strategy

       as counsel should be given deference in choosing a trial strategy which, at the

       time and under the circumstances, seems best.” Whitener v. State, 696 N.E.2d

       40, 42 (Ind. 1998). In order to prevail on a claim of ineffective assistance due to

       the failure to object, the defendant must show a reasonable probability that the

       objection would have been sustained if made. Passwater v. State, 989 N.E.2d

       766, 772 (Ind. 2013) (citing Wrinkles v. State, 749 N.E.2d 1179, 1192 (Ind. 2001),

       cert. denied, 535 U.S. 1019, 122 S. Ct. 1610 (2002)). We apply the same

       standard of review to claims of ineffective assistance of appellate counsel as we

       apply to claims of ineffective assistance of trial counsel. Williams v. State, 724

       N.E.2d 1070, 1078 (Ind. 2000), reh’g denied, cert. denied, 531 U.S. 1128, 121 S.

       Ct. 886 (2001).


[22]   Davis claims his trial counsel was ineffective for allowing Light’s counsel to

       invoke the Fifth Amendment at a deposition, failing to object to judicial and

       prosecutorial misconduct that deprived him of Light’s testimony, failing to

       request immunity for Light, failing to make a cogent argument why Light’s

       voluntary testimony was admissible, and failing to object to the exclusion of

       Light’s testimony. Davis appears to argue that his appellate counsel was

       ineffective for failing to raise the argument that his right to confrontation was

       violated when the trial court excluded Light’s testimony and letters that

       exonerated him and that contradicted the State’s proffered hearsay testimony.


[23]   The Sixth Amendment Confrontation Clause establishes that “[i]n all criminal

       prosecutions, the accused shall enjoy the right . . . to be confronted with the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 13 of 21
       witnesses against him.” U.S. CONST. amend. VI. The Sixth Amendment

       confrontation right, however, occasionally comes into conflict with the Fifth

       Amendment right against self-incrimination, State v. Taylor, 49 N.E.3d 1019,

       1026 (Ind. 2016), which provides that “[n]o person . . . shall be compelled in

       any criminal case to be a witness against himself.” Recognizing this tension,

       “courts must watch vigilantly to ensure that the invocation [does] not

       ‘effectively . . . emasculate the right of cross-examination itself.’” Id. (quoting

       U.S. v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989) (omission in original) (quoting

       Delaware v. Fensterer, 474 U.S. 15, 19, 106 S. Ct. 292 (1985))). While the due

       process clause of the Fourteenth Amendment and the compulsory process or

       confrontation clauses of the Sixth Amendment guarantee criminal defendants a

       “meaningful opportunity to present a defense,” Joyner v. State, 736 N.E.2d 232,

       242-243 (Ind. 2000), “the power to compel testimony is not absolute.” Kastigar

       v. U.S., 406 U.S. 441, 444, 92 S. Ct. 1653, 1656 (1972), reh’g denied. A trial

       court is authorized to determine whether an answer to a question proposed to a

       witness will incriminate the witness. Duso v. State, 866 N.E.2d 321, 325 (Ind.

       Ct. App. 2007).


[24]   The exchange regarding whether Light would testify occurred in the courtroom,

       and she was represented by counsel. Based upon the exchange, we cannot say

       that the court advised Light of her right to avoid self-incrimination in a

       threatening or browbeating manner. Light was represented by counsel at trial

       and she ultimately decided not to testify. We cannot say that Davis’s trial

       counsel was ineffective on this basis. See Duso, 866 N.E.2d at 326 (holding that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 14 of 21
       the defendant’s Sixth Amendment right to compulsory process did not trump a

       witness’s Fifth Amendment right against self-incrimination). To the extent

       Davis asserts that his trial counsel was ineffective for permitting Light’s counsel

       to invoke the Fifth Amendment on Light’s behalf, we observe that the portion

       of the trial transcript cited by Davis on appeal indicates that Light stated “they

       did not let me have a deposition” and “as soon as I was trying to say to them

       what happened, they didn’t like what I had to say, so they basically did not give

       me a deposition.” Trial Transcript Volume I at 194. The deposition of Light

       indicates that Light was present at the deposition, did not attempt to testify as

       to the incident, and did not disagree when her counsel stated that she would not

       give a statement at that time. We cannot say that Davis has demonstrated that

       his counsel was ineffective on this ground.


[25]   With respect to Davis’s assertion that his trial counsel was ineffective for failing

       to request immunity for Light, we observe that “Indiana, like many states, has

       enacted legislation giving prosecutors the authority to grant use immunity to

       witnesses and obviate the self-incrimination privilege of the fifth amendment.”

       Bubb v. State, 434 N.E.2d 120, 123 (Ind. Ct. App. 1982). “Exercise of this

       power is limited to prosecutors.” Id. Davis does not point to the record, and

       our review does not reveal, that Davis asked his trial counsel at the post-

       conviction hearing why he did not request that Light be afforded immunity.

       We also observe that his trial counsel objected to the testimony of Officer Wells

       and Paramedic Warren regarding their discussions with Light, informed the

       court that he wished to call Light as a witness, questioned Light in the presence


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 15 of 21
       of the court, told the court that Davis was “insistent that I offer [Light] this

       exhibit [the letter Light allegedly wrote to the prosecutor] and ask her if it was

       hers,” questioned Light about the letter, and asked Light if she was willing to

       testify about the events that occurred on August 8, 2002. Trial Transcript

       Volume I at 190. Trial counsel also asserted “it’s our position – that my client

       didn’t do this and that her evidence and her testimony is exculpatory in the

       matter.” Id. at 193. Later, after the State rested, Davis’s trial counsel again

       called Light. Again, we cannot say that Davis has demonstrated that his trial

       counsel’s performance was deficient on this basis.


[26]   With respect to Davis’s argument that his counsel failed to challenge the

       admission of Officer Wells’s testimony, the United States Supreme Court has

       explained that “[s]tatements are nontestimonial when made in the course of

       police interrogation under circumstances objectively indicating that the primary

       purpose of the interrogation is to enable police assistance to meet an ongoing

       emergency.” Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273

       (2006). “In making the primary purpose determination, standard rules of

       hearsay, designed to identify some statements as reliable, will be relevant.”

       Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S. Ct. 1143, 1155 (2011). “To

       determine whether the ‘primary purpose’ of an interrogation is ‘to enable police

       assistance to meet an ongoing emergency,’ which would render the resulting

       statements nontestimonial, we objectively evaluate the circumstances in which

       the encounter occurs and the statements and actions of the parties.” Id. at 359,

       131 S. Ct. at 1156 (quoting Davis, 547 U.S. at 822, 126 S. Ct. 2266).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 16 of 21
[27]   The facts here objectively demonstrate that the primary purpose of Officer

       Wells’s discussion with Light was to enable police assistance to meet an

       ongoing emergency. First, Officer Wells’s encounter with Light was at the

       scene rather than at the police station. Davis does not challenge the post-

       conviction court’s finding that Officer Wells testified that, when he spoke to

       Light, she was soaked in blood and blood was pumping out of the wounds in

       her head. Second, because Light’s statements were excited utterances, they

       “are considered reliable because the declarant, in the excitement, presumably

       cannot form a falsehood.” See Bryant, 562 U.S. at 361, 131 S. Ct. at 1157.

       Third, because Davis had fled the scene of a violent attack and could not be

       located, a reasonable officer would have considered the threat to Light, first

       responders, and the public ongoing. See id. at 363-364, 131 S. Ct. at 1158.

       Fourth, Officer Wells quickly asked Light her identity and the identity of her

       assailant. He testified that “I was . . . trying to get right to the point – what had

       occurred and who did it.” Trial Transcript Volume I at 32. There is no

       evidence suggesting that Officer Wells told Light that he needed Davis’s

       identification for purposes of prosecution, and there is no reason to think that

       “a conversation which beg[an] as an interrogation to determine the need for

       emergency assistance . . . evolve[d] into testimonial statements.” See Bryant,

       562 U.S. at 365, 131 S. Ct. at 1159 (quotations omitted). Officer Wells’s

       request for the identity of her attacker was information that allowed him to

       “assess the situation, the threat to [his] own safety, and possible danger to the

       potential victim and to the public, including to allow [him] to ascertain whether

       [he] would be encountering a violent felon.” See id. at 376, 131 S. Ct. at 1166
       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 17 of 21
       (citations and quotations omitted). The circumstances of the encounter, as well

       as the statements and actions of Light and Officer Wells, reveal that Light’s

       identification of herself and Davis were not testimonial statements. We cannot

       say that the Confrontation Clause barred their admission at Davis’s trial. See

       McQuay v. State, 10 N.E.3d 593, 599 (Ind. Ct. App. 2014). Also, Davis has not

       demonstrated that the statements to Paramedic Warren were testimonial. See

       Perry v. State, 956 N.E.2d 41, 57 (Ind. Ct. App. 2011) (holding that the victim’s

       statements to a medical provider were not testimonial). Accordingly, we

       cannot say that Davis’s trial counsel or appellate counsel were ineffective on

       this ground.


                                                         II.


[28]   The next issue is whether Davis is entitled to a new trial due to newly

       discovered evidence. Generally, new evidence will mandate a new trial only

       when the defendant demonstrates that: (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) (citing

       Fox v. State, 568 N.E.2d 1006, 1007 (Ind. 1991)). 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.

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

       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 18 of 21
       that all nine requirements are met rests with the petitioner for post-conviction

       relief.” Taylor v. State, 840 N.E.2d 324, 330 (Ind. 2006).


[29]   Without citation to the record, Davis argues that a comparison of the picture of

       Antwon Davis and Denning demonstrates how witnesses misidentified

       Antwon. He also asserts that certain facts in Denning’s testimony are

       undisputable and establish the seventh and ninth prongs for determining

       whether new evidence mandates a new trial. He contends that the testimony of

       Whiteside, Amy, and Milliner corroborates Denning’s account.


[30]   With respect to the seventh prong, whether the evidence is worthy of credit, we

       note that the post-conviction court is the sole judge of the weight of the

       evidence and the credibility of witnesses. Fisher, 810 N.E.2d at 679. The post-

       conviction court found Denning’s testimony, “both in terms of his demeanor

       and credibility as a witness, and in light of the other eyewitnesses who testified,

       is not worthy of credit.” Appellant’s Appendix Volume 2 at 226. The court

       also found Denning’s testimony “to be inherently unbelievable and

       contradictory with other witnesses at trial and at the Post-Conviction

       evidentiary hearing.” Id.


[31]   To the extent Davis relies on the testimony of Amy and Milliner, we note that

       the post-conviction court found that “the post-conviction testimony of Amy

       Heady and Kevin Milliner offered nothing substantive, except perhaps that

       [Davis] looks similar to a photograph of his brother.” Id. Further, we observe

       that their testimony at the post-conviction hearing would merely be impeaching


       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 19 of 21
       of their own trial testimony. We cannot say that Davis satisfied the fourth

       prong of the test for newly discovered evidence. See Coates v. State, 534 N.E.2d

       1087, 1098 (Ind. 1989) (“Furthermore, evidence that merely impeaches

       generally does not support a claim for a new trial based on newly discovered

       evidence.”) (citing Downs v. State, 482 N.E.2d 716 (Ind. 1985)).


[32]   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.

       Even if Amy and Milliner testified at a new trial, the State would have an

       opportunity to rehabilitate their testimony by introducing their prior testimony.

       As pointed out by the post-conviction court, Denning’s testimony conflicted

       with Whiteside’s testimony. We are not persuaded that Davis has raised a

       strong presumption a new trial would achieve a different result.2




       2
         To the extent Davis appears to argue that the post-conviction court abused its discretion when it prevented
       him from presenting Light’s testimony, Davis made similar arguments regarding Light’s testimony at trial,
       Light had previously invoked her Fifth Amendment privilege, and the record already contained Light’s
       statements that Davis did not beat her. With respect to his assertion that the trial court abused its discretion
       when it prevented post-conviction counsel from fully and effectively questioning witnesses, Davis cites to
       pages 37, 38, and 41 of the post-conviction transcript and we cannot say that these pages demonstrate that the
       trial court abused its discretion.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018              Page 20 of 21
                                                    Conclusion

[33]   For the foregoing reasons, we affirm the post-conviction court’s denial of

       Davis’s petition for post-conviction relief.


[34]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1710-PC-2328 | July 12, 2018   Page 21 of 21
