MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Mar 20 2018, 10:28 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
Andre Payne                                              Curtis T. Hill, Jr.
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Andre Payne,                                             March 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1602-PC-351
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1106-PC-35



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018              Page 1 of 11
[1]   Andre Payne (“Payne”) appeals the post-conviction court’s denial of his

      petition for post-conviction relief. Payne raises two issues for our review which

      we restate as:


        I.    Whether changes in two witnesses’ testimony constitute newly
              discovered evidence warranting post-conviction relief; and

       II.    Whether there was insufficient evidence presented at trial to rebut his
              self-defense claim.


[2]   We affirm.


                                 Facts and Procedural History
[3]   A panel of this court set forth the facts and initial procedural history pertaining

      to Payne’s attempted murder and voluntary manslaughter convictions as

      follows:


              During the early morning of October 26, 2008, Dominque Wells
              was driving his girlfriend’s mother’s Impala. Victorio Belcher and
              another man, known to Wells only as Robert, were passengers in
              the vehicle. At approximately 1:00 a.m., Wells drove to a
              Marathon gas station in downtown South Bend and parked next
              to a fueling pump.


              Payne, Anthony Brown, Mark Murphy, and Quintin Ferrguson
              also were driving around that morning in Ferrguson’s
              Oldsmobile. Brown possessed a .22 caliber handgun, and Payne
              possessed a .9 mm handgun. When they drove by the Marathon
              gas station, they noticed the Impala parked there. Believing that
              the Impala belonged to a female friend, they parked on the other
              side of the fueling pump.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 2 of 11
        Brown, Ferrguson, Belcher, and Wells, who all knew each other,
        exited their respective vehicles and began arguing. Wells noticed
        that Brown had a “.22 or something” caliber gun in his hand.
        (Tr. 259). Eventually, Brown got back in the Oldsmobile’s
        driver’s seat; Ferrguson got in the front passenger’s seat; and
        Payne got in the back seat, where Murphy had remained. When
        Brown got back into the Oldsmobile, he threw his gun “on the
        seat between [him] and [Ferrgusson].” (Tr. 308).


        Belcher then approached the Oldsmobile “with his gun drawn
        out talking about, is that Murph, is that Murph,” and pointing
        his gun at the occupants. (Tr. 308). Ferrguson therefore picked up
        Brown’s gun and began shooting toward Belcher. Ferrguson and
        Belcher exchanged numerous rounds of gunfire. Both sustained
        gunshot wounds.


        Brown, Payne, and Murphy immediately took Ferrguson to a
        hospital. Payne then drove Brown and Murphy to a friend’s house to
        “get some more bullets” for Brown’s gun. (Tr. 343).


        At approximately 3:00 a.m., Brown, Murphy, and Payne left
        their friend’s house and drove to Kelly’s Pub, a bar located west
        of the Marathon gas station. Payne still possessed his .9 mm
        handgun, which he kept on his lap as he drove. When they
        arrived at the bar, they noticed Wells’[s] uncle in the bar’s
        parking lot. Brown shot at him from the still-moving Oldsmobile.
        Murphy then reloaded the gun with bullets and gave the gun
        back to Brown.


        In the meantime, Wells had dropped Belcher and Robert off at a
        hospital and returned home. Shortly thereafter, Bradley Walls
        picked up Wells, and the two of them left in Bradley’s vehicle.
        Bradley had a “small” gun, which he kept between the front
        seats. (Tr. 267).


Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 3 of 11
        At approximately 3:45 a.m., Bradley and Wells drove to a Taco
        Bell. They soon left after Wells observed Ferrguson’s
        Oldsmobile. Payne, however, followed them out of the parking
        lot.


        After leaving the Taco Bell parking lot, Bradley and Wells drove
        a short distance before stopping for a traffic light at an
        intersection. Payne stopped to the left of, but not even with,
        Bradley’s vehicle. Thus, the Oldsmobile’s “front passenger side
        window was even with the back driver’s side window of”
        Bradley’s vehicle. (Tr. 227).


        Murphy, who was sitting in the Oldsmobile’s front passenger
        seat, heard Payne say, “duck. . . .” (Tr. 335). Payne then began
        shooting “[a]cross” Murphy and out of Murphy’s window, which
        had been “shot out already.” (Tr. 336). Brown, who was sitting
        directly behind Murphy, also started shooting toward Bradley’s
        vehicle. Brown fired eleven shots; “[a]ll [his] shots went to the
        door.” (Tr. 401). Although Payne “said they had a gun,” at no
        time did Murphy or Brown see any of the occupants of Bradley’s vehicle
        with a gun. (Tr. 338).


        When Wells realized that Payne had followed them, he
        immediately “dropped [his] head” because he “knew they were
        going to start shooting.” (Tr. 267). Wells then heard “[s]omebody
        out of that car start shooting” but could not see who was
        shooting at him. (Tr. 268). Once the shooting began, Wells tried
        to fire Bradley’s gun, but “the gun wouldn’t shoot.” (Tr. 269). He
        therefore threw the gun out of the vehicle. Wells heard Bradley
        say, “I’m hit . . . .” (Tr. 268). Bradley’s vehicle then started
        moving forward approximately one block, until it struck a pole.
        Bradley died at the scene.


        An autopsy revealed that Bradley sustained only one gunshot
        wound. The bullet entered his left side, traveled through several

Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 4 of 11
        organs, and pierced his aorta, killing him. The forensic
        pathologist recovered “a bullet within the right chest wall area
        after it had gone through the ribs.” (Tr. 438).


        Officers collected shell casings from a .40 caliber semiautomatic
        handgun and a .22 caliber handgun at the Marathon gas station.
        Officer also collected a “spent .22 caliber single shell casing” in
        the parking lot of Kelly’s Pub. (Tr. 464). Officers processing the
        scene at the intersection of Main Street and LaSalle Avenue
        collected ten spent shell casings from a .22 caliber weapon.
        Officers also discovered a “.32 caliber semiautomatic handgun ...
        lying in the middle of LaSalle Street just west of the intersection
        of LaSalle and Main”; however, they did not discover any .32
        caliber shell casings at the scene or in Bradley’s vehicle. (Tr. 475).


        Officers processing Bradley’s vehicle counted fifteen bullet holes
        in the driver’s side. They discovered several bullet holes in the
        “left quarter panel” of the trunk area; “the left rear passenger side
        door”; and the “left driver’s door.” (Tr. 482). Officers collected a
        “.22 caliber bullet fragment” from the “left rear quarter panel
        trunk area . . . .” (Tr. 484). They also collected “two partial
        projectiles and jacketing which ended up matching a .9 mm
        projectile” from the left-rear passenger door as well as “a single
        projectile in the bottom of the left driver’s side door which also
        was a .9 mm . . . .” (Tr. 485). An analysis of the bullet hole in the
        driver’s side door determined that the .9 mm projectile entered
        “almost perpendicular” to the door. (Tr. 488).


        Officers processing the Oldsmobile discovered “bullet strikes on
        the left side of the vehicle . . . .” (Tr. 453). Officers found no
        damage on the right, or passenger, side of the vehicle. They also
        recovered a .40 caliber bullet from the Oldsmobile and another
        .40 caliber bullet from Ferrguson.




Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 5 of 11
        Detective Sergeant Ray Wolfenbarger, a firearm and tool mark
        examiner for the South Bend Police Department’s Crime
        Laboratory, examined the .22 caliber shell casings recovered at
        the Marathon gas station, Kelly’s Pub, and the intersection of
        Main Street and LaSalle Avenue. He determined all of the
        casings to be “.22 long rifle caliber casing[s] . . . marketed by
        Remington” and fired by the same weapon. (Tr. 512). He further
        determined that the bullet fragments collected from Bradley’s
        vehicle were fired from a “.9 mm Lugar caliber.” (Tr. 516). He
        also verified that the bullet removed from Bradley’s body during
        his autopsy was consistent with a .9 mm Lugar caliber. Officers
        did not recover either Payne’s or Brown’s gun.


        On January 22, 2009, the State charged Payne with Count I,
        felony murder; and Count II, attempted murder, a class A felony.
        On June 15, 2009, the trial court commenced a four-day jury
        trial.


        Payne testified that as he pulled up along the side of Bradley’s
        vehicle, he saw Wells “look[ ] back” and “reach over” as Bradley
        ducked his head. (Tr. 583). He also testified that he saw a gun in
        Wells’[s] hand; heard Brown say that Wells had a gun; and that
        Wells then “started shooting . . . .” (Tr. 583). Payne further
        testified that he fired three shots.


        The jury found Payne guilty of class A felony voluntary
        manslaughter and class A felony attempted murder. Following a
        sentencing hearing on July 14, 2009, the trial court sentenced
        Payne to consecutive sentences of thirty years for voluntary
        manslaughter and thirty years, with ten years suspended, for
        attempted murder.


Payne v. State, No. 71A05-0908-CR-435, 2010 WL 1132557, at *1–*3 (Ind. Ct.

App. Mar. 25, 2010) (emphases added).


Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 6 of 11
[4]   On direct appeal, Payne claimed that the evidence was insufficient to rebut his

      claim of self-defense beyond a reasonable doubt. Id. at *3. We disagreed and

      explained, “Payne’s argument is merely a request to reweigh the evidence and

      judge the credibility of witnesses, which we may not do.” Id. at *4.


[5]   Payne first filed for post-conviction relief on June 29, 2011. He amended his

      petition both orally and in writing several times, and evidentiary hearings were

      held on March 15, 2015, and October 9, 2015. During the hearings, Payne

      questioned his trial counsel, his appellate counsel, Mark Murphy (“Murphy”),

      and Anthony Brown (“Brown”). He also submitted several exhibits, two of

      which were affidavits from Murphy and Brown modifying the account they

      gave at trial regarding the night of the shooting.


[6]   On January 13, 2016, the post-conviction court denied Payne’s petition. In

      relevant part, the court found that the changed testimony from Murphy and

      Brown constituted impeachment evidence and not newly discovered evidence.

      Appellant’s App. p. 111. The court also did not find the changed testimony

      credible and determined that it was not likely to produce a different result at

      trial. Id. at 111–12.


[7]   Payne now appeals.


                           Post-Conviction Standard of Review
[8]   The post-conviction petitioner bears the burden of establishing grounds for

      relief by a preponderance of the evidence. Willoughby v. State, 792 N.E.2d 560,

      562 (Ind. Ct. App. 2003), trans. denied. When a petitioner appeals the denial of a
      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 7 of 11
      petition for post-conviction relief, the petitioner stands in the position of one

      appealing from a negative judgment. Id. On appeal, we do not reweigh evidence

      nor judge the credibility of witness; therefore, to prevail, Payne must show that

      the evidence in its entirety leads unerringly and unmistakably to a conclusion

      opposite that reached by the post-conviction court. Id. Where, as here, the post-

      conviction court makes findings of fact and conclusions of law in accordance

      with Indiana Post–Conviction Rule 1(6), we do not defer to the court’s legal

      conclusions, but the “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.” Henley v. State, 881 N.E.2d 639, 644 (Ind. 2008).


                                       Change in Testimony
[9]   Payne first contends that the post-conviction court erred by not granting him a

      new trial in light of what he describes as newly discovered perjury evidence.

      Our supreme court has explained:


              [N]ew 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.


      Taylor v. State, 840 N.E.2d 324, 329–30 (Ind. 2006) (citation omitted). It is

      Payne’s burden to show that all nine requirements have been met. Id. at 330.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 8 of 11
[10]   Payne has not shown that the affidavits and accompanying testimony meet all

       the criteria. Most notably, the change in testimony would be used merely to

       impeach Brown’s and Murphy’s trial testimony. Impeachment is “[t]he act of

       discrediting a witness, as by catching the witness in a lie or by demonstrating that

       the witness has been convicted of a criminal offense.” Taylor, 840 N.E.2d at 330

       n. 1 (quoting Black's Law Dictionary 768 (8th ed. 2004)). However, impeaching

       evidence and “merely impeaching” evidence are not the same. “[E]vidence

       which destroys or obliterates the testimony upon which a conviction was

       obtained is not appropriately considered as merely impeaching evidence.”

       Wilson v. State, 677 N.E.2d 586, 588 (Ind. Ct. App. 1997) (citing Dennis v. State,

       103 Ind. 142, 2 N.E. 349, 355 (1885)).


[11]   Both Brown and Murphy testified at trial: (1) that they traveled with Payne to

       retrieve more bullets on the night of the shooting; and (2) that they did not see

       Wells with a gun in the other car. Trial Tr. Vol. 2, pp. 337–38, 343–44, 377,

       387–89. Now, based on the affidavits submitted and their testimony at the post-

       conviction hearing, Brown and Murphy allege: (1) that they did not travel to

       retrieve more bullets on the night of the shooting; and (2) that they did see

       Wells with a gun in the other car. Ex. Vol., Petitioner’s Ex. H; Appellant’s App.

       pp. 75–76; Post-Conviction Tr. May 15, 2015, pp. 9, 17–18; Post-Conviction

       Tr. Oct. 9, 2015, p. 65. Payne argues that these circumstances warrant a new

       trial. We disagree.


[12]   Murphy testified that he did not lie during Payne’s trial, but rather, “[a]t the

       time it was a misunderstanding. We planned the whole night and the situation

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018   Page 9 of 11
       had occurred. The bullets was [sic] already confirmed they were already in the

       car.” Post-Conviction Tr. May 15, 2015, p. 9. Conversely, Brown testified that

       he did lie at trial. Post-Conviction Tr. Oct. 9, 2015, pp. 70, 73, 75. Regardless,

       the now changed testimony of both Murphy and Brown is a clear example of

       “merely impeaching” evidence. It does nothing more than undermine both

       witnesses’ credibility.


[13]   Even assuming that both Murphy and Brown committed perjury during

       Payne’s trial, our supreme court has explained, “Despite the greater

       impeachment power of a perjury conviction, it is still merely impeaching.”

       Downs v. State, 482 N.E.2d 716, 719 (Ind. 1985). Moreover, both Murphy and

       Brown were impeached during Payne’s trial with inconsistent statements. See,

       e.g., Trial Tr. Vol. 2, pp. 352–359, 394–409. Accordingly, their changed

       testimony now does not warrant relief for Payne. See Pannell v. State, 36 N.E.3d

       477, 491–92 (Ind. Ct. App. 2015), trans. denied.


[14]   Because Payne has failed to show that the change in testimony “is not merely

       impeaching,” the post-conviction court did not err when it determined that

       Payne had failed to offer newly discovered evidence.1




       1
         Payne also consistently asserts that the prosecution knowingly presented false testimony. See Appellant’s Br.
       10–13. We agree with the State that “this claim is really a claim that the prosecutor failed to disclose
       exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).” Appellee’s Br. at 13. And
       because Payne has failed to support these assertions with a cogent argument, and because he failed to bring
       this claim on direct appeal, it is waived. See Ind. Appellate Rule 46(A)(8)(a); Allen v. State, 791 N.E.2d 748,
       755 (Ind. Ct. App. 2003), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1602-PC-351 | March 20, 2018             Page 10 of 11
                                         Insufficient Evidence
[15]   Payne next claims that “[t]here is not sufficient evidence of probative value to

       support the conclusion of the trier of fact . . . that self[-]defense was negated by

       the State beyond a reasonable doubt.” Appellant’s Br. at 15. However, the

       purpose of a petition for post-conviction relief is to raise issues that were

       unknown or unavailable to Payne at the time of the original appeal. Taylor, 840

       N.E.2d at 330. And this issue was available to Payne at the time of his original

       appeal. In fact, it is the exact issue he raised in his direct appeal. Payne, 2010

       WL 1132557, at *3–*4. Therefore, he cannot now raise the same claim again as

       it is barred by res judicata. See Timberlake v. State, 753 N.E.2d 591, 597 (Ind.

       2001) (holding that if a claim “was raised on appeal, but decided adversely, it is

       res judicata.”).


                                                 Conclusion
[16]   Based on the facts and circumstances before us, the post-conviction court did

       not err when it denied Payne’s petition for post-conviction relief. Accordingly,

       we affirm.


       Najam, J., and Barnes, J., concur.




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