MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Sep 01 2017, 9:18 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
Borahm Kim                                               James B. Martin
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, IN                                         Indianapolis, IN



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jory D. Peters,                                          September 1, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1703-PC-393
        v.                                               Appeal from the Lake Superior
                                                         Court, Criminal Division
State of Indiana,                                        The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Natalie Bokota,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         45G04-1511-PC-10



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017         Page 1 of 10
                                          Case Summary
[1]   Jory D. Peters was convicted of murder. His conviction was affirmed on direct

      appeal. He then sought post-conviction relief, alleging he was entitled to a new

      trial because of newly discovered evidence. The post-conviction court denied

      relief, concluding that Peters failed to prove that the newly discovered evidence

      would probably produce a different result at retrial. We affirm the post-

      conviction court.



                            Facts and Procedural History
[2]   The facts underlying Peters’s murder conviction, taken from this Court’s

      opinion on direct appeal, are as follows:

              In July 2011, Crystal Mendez was driving in Gary with her
              mother and her brother, Juan Nieves. They noticed that a white
              Grand Prix was following them. The vehicle pulled beside
              Mendez’s vehicle, and they saw Peters, who was driving the
              vehicle, look directly at them.


              On August 7, 2011, Mendez saw Peters again. She was driving
              with Nieves when they saw Peters driving a Chrysler 300 with a
              distinctive green paint pattern. Peters was driving slowly in front
              of them, so Mendez passed Peters and drove toward their home.
              When Mendez pulled into a gas station, Peters stopped in the
              middle of the street. Peters’s passenger got out of the vehicle,
              and Mendez heard gunshots. Nieves told Mendez to go home,
              and he ran into the gas station.


              On August 14, 2011, Mendez was with her boyfriend’s sister,
              Tiyona Dennie. Mendez again saw Peters driving the green

      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 2 of 10
              Chrysler 300. Mendez and Dennie started looking for Nieves to
              warn him that Peters was in the area. They located Nieves,
              warned him, and told him to go home. Mendez and Dennie then
              went to Mendez’s house. As they reached the porch, they heard
              gunshots. Soon a girl rode up on her moped and said that
              Nieves’s truck had crashed nearby. Mendez went to the scene,
              where she found Nieves’s truck crashed into a tree and Nieves
              with several gunshot wounds, which were fatal.


              On the same day, Annette Harmon was driving down 25th
              Avenue in Gary headed toward Broadway. In her rearview
              mirror, Harmon noticed a Chrysler 300 with a “funny green
              paint job” approaching at a high rate of speed. The vehicle
              passed Harmon, and she heard gunshots. Harmon “ducked”
              and, when she looked back up, she saw the Chrysler 300 driving
              the wrong way into oncoming traffic. The vehicle ran a red light
              and made a right turn on Broadway. Harmon saw a truck that
              was two cars in front of her turn a corner and drive into some
              bushes. Harmon and her passenger stopped to see if they needed
              help and called 911. The incident was recorded on video
              surveillance cameras of nearby businesses.


      Peters v. State, No. 45A03-1305-CR-177 (Ind. Ct. App. May 28, 2014) (citations

      omitted), trans. denied.


[3]   A detective with the Gary Police Department interviewed Peters in February

      2012. During the two-hour interview, which was videotaped, Peters initially

      denied that he was in the area of the shooting on August 14, 2011. But after

      being shown surveillance photos of his car, Peters admitted that he was in the

      area but that he heard shots and “got out of Dodge.” See Trial Tr. p. 485; Trial

      Ex. 83 (videotape). The detective gave Peters multiple opportunities to claim

      that he shot Nieves in self-defense, but Peters did not do so. For example, the
      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 3 of 10
      detective told Peters that the only thing that made sense to him was that Nieves

      was trying to kill Peters and that Peters shot him because he was trying to

      “defend himself.” See Trial Ex. 83 (1:25:10-1:27:55). The detective even told

      Peters about a recent shooting in Gary where a person was not charged with

      any crimes because he acted in self-defense. Still, Peters maintained that he left

      the area when he heard shots.


[4]   Thereafter, the State charged Peters with murder. A jury trial was held.1

      During trial, Peters’s videotaped statement was played for the jury. In addition,

      through questioning of witnesses, defense counsel implied that Nieves had a

      gun, which Mendez removed from the truck before police arrived on the scene.

      See Trial Tr. p. 484. Before closing arguments, defense counsel asked the trial

      court to instruct the jury on self-defense. Id. at 483. Defense counsel argued

      that Peters’s statement that he “heard shots” and “got out of Dodge” supported

      the instruction. Id. at 485. The State responded that Peters’s statement was not

      enough because Peters never said “one way or the other[] whether he saw the

      victim with the gun,” whether “the victim shot at him on that day,” and

      whether he “did anything back to the victim on that day.” Id. at 485-86. In

      addition, the State argued that Peters “never assert[ed] that he was afraid” or

      that “he had to do anything to protect himself.” Id. at 486. The trial court

      refused to instruct the jury on self-defense, reasoning as follows:




      1
          The first trial resulted in a hung jury, and a mistrial was declared.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 4 of 10
               [I]f you review the defendant’s statement, he denies ever being
               there. Repeatedly. The detective starts to make progress in his
               discussions with Mr. Peters, ultimately convinces Mr. Peters that
               Mr. Peters has or is found in the area, in his car, on the 14th,
               when he was adamant that he was home watching his children. .
               . . The part of the statement that the defendant talks about, he
               talks about ultimately, when he admits that he was in the area,
               that he heard shots and he got out of there. That was essentially
               it. . . . In light of his statement to the police, there is no
               appreciable evidence of self defense from the statement or the
               other evidence in the case . . . .


      Id. at 500-503.


[5]   The jury found Peters guilty of murder, and we affirmed his conviction on

      direct appeal.2 Peters, No. 45A03-1305-CR-177.


[6]   In 2015, Peters filed a pro se petition for post-conviction relief, which was

      amended by counsel in 2016. The amended petition alleged newly discovered

      evidence in that there was a newly discovered witness for the defense,

      Christopher Godines, whom Peters met while incarcerated. According to

      Godines, he saw Mendez take a gun from Nieves right after his truck crashed.

      Appellant’s P-C App. Vol. II p. 52. The post-conviction court held a hearing on

      Peters’s amended petition. The court first took judicial notice of the trial-court

      record. Godines then testified that he saw Mendez open the driver’s door of

      Nieves’s truck, fumble around inside, and return with a gun. P-C Tr. Vol. II p.




      2
       Peters did not raise as an issue on appeal that the trial court erred in refusing to instruct the jury on self-
      defense.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017                 Page 5 of 10
25. Peters’s trial counsel testified that he did not discover Godines until after

trial and that he would have presented the testimony of Godines to support his

theory of self-defense because it showed that the victim was armed. The post-

conviction court made the following findings:


        2. Prior to the filing of charges, Peters gave a statement to the
        police which was introduced at trial. State’s Exhibit 83. Peters
        initially denied being present at the scene of the shooting that
        resulted in Nieves’s death. Upon being shown still photographs
        of a video that captured his car at the scene, Peters alternatively
        conceded he was there . . . . At one point, Peters agreed with the
        detective that he heard shots and got out of there.


                                              *****


        9. Prior to closing arguments, the defense requested that the jury
        be instructed on self-defense. Counsel for Peters had implied
        through his questioning of witnesses that the victim had a gun
        that was removed prior to the arrival of the police. . . . The State
        argued that self-defense is a question of whether a defendant’s
        actions were reasonable in response to a threat to him; Peters
        denied any action, having asserted that he heard shots and fled.
        There was no evidence that the defendant perceived a threat from
        the victim or was in fear of the victim and responded with some
        reasonable action. The court denied the requested instruction . . .
        .


Appellant’s P-C App. Vol. II pp. 155, 157 (record citations omitted). The court

outlined the nine-part test for newly discovered evidence but concluded that

Peters failed to prove the final factor, that the newly discovered evidence will

probably produce a different result at retrial:


Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 6 of 10
                4. Nothing about the testimony Godines offers would change the
                outcome of the case because it does not alter the fact that Peters
                never claimed that he acted in self-defense. Although his
                attorney implied that Peters acted in self-defense and suggested
                that the victim was armed, there was no evidence of this. The
                arguments of counsel are, of course, not evidence. Even with
                Godines’s testimony, there is no evidence of self-defense. Even
                with Godines’s testimony, the court would properly still deny a
                request for a self-defense instruction.


                                                    *****


                7. . . . In order to rely on the defense of self-defense, the
                defendant must have “acted without fault, been in a place where
                he had a right to be, and been in reasonable fear or apprehension
                of bodily harm.” In his statement Peters negates self-defense. He
                claims that he heard shots and left the scene. He never claimed
                that Nieves fired a gun at him. He never claimed that he fired
                back to protect himself or anyone else. There is no evidence that
                Peters was in reasonable fear or apprehension of bodily harm
                from Nieves.


                8. Even if the court granted a request to instruct the jury on self-
                defense, there is no possibility that the jury would acquit Peters
                on this basis for the same reasons. There is simply no evidence
                that Peters did anything in defense of self.


      Id. at 159, 160 (citation omitted). Accordingly, the post-conviction court denied

      relief.


[7]   Peters now appeals.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 7 of 10
                                  Discussion and Decision
[8]    Defendants who have exhausted the direct-appeal process may challenge the

       correctness of their convictions and sentences by filing a post-conviction

       petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh’g denied. Post-

       conviction proceedings are not an opportunity for a “super-appeal,” and not all

       issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), reh’g

       denied. Rather, subsequent collateral challenges to convictions must be based

       on grounds enumerated in the post-conviction rules. Ind. Post-Conviction Rule

       1(1); Timberlake, 753 N.E.2d at 597. In post-conviction proceedings, complaints

       that something went awry at trial are cognizable only when they show

       deprivation of the right to effective counsel or issues demonstrably unavailable

       at the time of trial or direct appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind.

       2002).


[9]    Post-conviction proceedings are civil proceedings, requiring the petitioner to

       prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at

       745. We review the post-conviction court’s legal conclusions de novo but

       accept its factual findings unless they are clearly erroneous. Id. at 746. The

       petitioner must establish that the evidence as a whole leads unerringly and

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

       Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002).


[10]   Peters contends that the post-conviction court erred in denying his request for a

       new trial based on newly discovered evidence. Newly discovered evidence


       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 8 of 10
       requires a new trial only when the petitioner demonstrates that: (1) the evidence

       has been 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) it 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. Taylor v. State, 840 N.E.2d 324,

       330 (Ind. 2006). We analyze “these nine factors with care, as the basis for

       newly discovered evidence should be received with great caution and the

       alleged new evidence carefully scrutinized.” Id. (quotation omitted). The

       burden of showing that all nine requirements are met rests with the petitioner

       for post-conviction relief. Id.


[11]   Here, the post-conviction court found that Peters failed to meet his burden of

       proving the final factor, that the newly discovered evidence will probably

       produce a different result at retrial. “A sufficient probability of a different result

       upon retrial is present where the omitted evidence creates a reasonable doubt

       that did not otherwise exist.” Fox v. State, 568 N.E.2d 1006, 1008 (Ind. 1991).


[12]   A valid claim of self-defense is legal justification for an otherwise criminal act.

       Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). In order to prevail on a

       claim of self-defense, a defendant must show: (1) he was in a place where he

       had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of

       death or great bodily harm. Id.; see also Ind. Code § 35-41-3-2. The evidence

       shows that the detective interviewed Peters for two hours. The videotape was

       admitted into evidence at the jury trial. During the interview, Peters initially

       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 9 of 10
       denied being in the area of the shooting. But after being shown surveillance

       photos of his car, Peters changed his story. Peters admitted being in the area

       but claimed that he left the area once he heard shots. The detective told Peters

       that the only thing that made sense to him was that Peters acted in self-defense.

       Peters, however, maintained that he left the area once he heard shots. Peters

       thus claimed the opposite of self-defense, that is, that he did not shoot Nieves.

       According to Godines, he saw Mendez remove a gun from Nieves’s truck after

       it crashed. This testimony does not establish that Nieves pointed the gun in

       Peters’s direction or fired it at him, or that Peters had a reasonable fear of death

       or great bodily harm. We therefore affirm the post-conviction court’s

       conclusion that Peters failed to prove that the newly discovered evidence will

       probably produce a different result at retrial.


[13]   Affirmed.


       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017   Page 10 of 10
