Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                              Aug 20 2013, 5:43 am
before any court except for the
purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

STEPHEN T. OWENS                                 GREGORY F. ZOELLER
Public Defender of Indiana                       Attorney General of Indiana

LINDA K. HUGHES                                  J.T. WHITEHEAD
Deputy Public Defender                           Deputy Attorney General
Indianapolis, Indiana                            Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOYCE ANN HAWKINS,                               )
                                                 )
       Appellant-Petitioner,                     )
                                                 )
              vs.                                )      No. 27A02-1301-PC-47
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Respondent.                      )


                     APPEAL FROM THE GRANT SUPERIOR COURT
                          The Honorable Jeffrey D. Todd, Judge
                            Cause Nos. 27D01-0907-PC-140
                                       27D01-0503-MR-55



                                      August 20, 2013



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

      Joyce Ann Hawkins appeals the post-conviction court’s denial of her petition for

post-conviction relief. Hawkins raises one issue on appeal: whether the post-conviction

court erred in concluding that witness testimony did not meet the requirements for newly-

discovered evidence. Concluding that the post-conviction court did not err and the

testimony failed to meet at least some of the requirements for newly-discovered evidence,

we affirm.

                              Facts and Procedural History

      In February 2007, following a jury trial, Joyce was convicted of the murder of her

ex-husband, Tim Hawkins. In March 2007, Joyce was sentenced to sixty years. She filed

a direct appeal, and we affirmed her conviction in April 2008. Hawkins v. State, 884

N.E.2d 939 (Ind. Ct. App. 2008), trans. denied.       In our opinion, we provided the

following background:

               Joyce and Tim had been married, and after getting a divorce, Tim
      still lived with Joyce at her home in Gas City. Theirs was a tempestuous
      relationship that involved a number of calls to the police, specifically, in
      reference to this case, on February 15, 20, and 21, 2004. During the
      months preceding Tim’s disappearance in March, Joyce told Tim’s mother
      and a friend that she was going to kill him. At all relevant times, Joyce
      owned a nine-millimeter handgun.
               Beginning in April 2003, Tim and Joyce began work as truck drivers
      with a trucking company. They were both aware of the presence of a GPS
      tracking system in the truck. Initially they worked full time but then cut
      back to part time because of personal issues. In February 2004, Tim picked
      up a truck from the company’s headquarters.
               Joyce and Tim planned to build a house on property they referred to
      as “the farm.” On March 6, 2004, Tim submitted a change of address to the
      post office, moving from Joyce’s house to his mother’s house. An address
      change was also filed on March 13, 2004, switching the mail from Joyce’s
      house to Tim’s sister’s address.
               On March 7, 2004, Joyce drank at a bar to the point of intoxication.
      Her father took her home, and during this trip she apparently fell down,
                                           2
becoming “scraped up” as a result. On March 8, 2004, Joyce did not
remember the fall and believed that Tim had beaten her up. Joyce looked
for Tim and found him at a friend’s house. Tim ignored her.
        According to the GPS tracking system, on March 8, 2004, Tim’s
truck was located in Kokomo at 1:50 p.m. where it remained until 2:10 a.m.
the next day. On March 8, 2004, Joyce walked to her aunt’s home in
Kokomo sometime before 2:33 p.m. and requested a ride to “the farm.” On
March 9, 2004, the trucking company received a message from Tim’s truck
stating, “Mike I [sic] sorry but I quit your truck is Indiana at I69 at Exit 19
by Subway Tim.”
        On March 10, 2004, a sheriff’s deputy responded to a report of an
abandoned vehicle in Pendleton, which he discovered was Tim’s truck.
Upon inspection, the sheriff’s deputy noted a broken window, unlocked
door, clean interior, and lack of blood. Shortly thereafter, a trucking
company employee transported the truck to a company facility in
Columbus, Ohio. The company began to repair the truck and prepare it for
sale. They replaced the driver’s side window, replaced the driver’s side
seat, began to repair pry marks around the door, and cleaned up the broken
glass inside the truck. Additionally, they found a nine-millimeter bullet
casing inside the dashboard. At no point did they find any blood, but they
did note the torn seat and mattress and the presence of diesel fuel inside the
cab.
        After the truck had been recovered, a crime scene technician,
Sergeant John Kelly (“Sergeant Kelly”), of the Indiana State Police went to
Ohio to process the truck. At that time, the trucking company had already
begun to repair the truck but had taken photos of the truck when it was
recovered.     Initially, Sergeant Kelly noted white marks indicating
something being dragged across the floor of the cab and the presence of
diesel fuel. Upon further investigation, Sergeant Kelly found that a
mattress had two portions cut out of it. Also, Sergeant Kelly noted stains
on the curtain behind the driver’s seat. He collected the curtain and the
stain for analysis. He also noted several small stains around the base of the
driver’s seat. Of five stains analyzed, only three came back as bloodstains,
possibly from Tim. Two bloodstains were found around the base of the
driver’s seat and one on the curtain behind the driver’s seat.
        On March 29, 2004, Tim’s family filed a missing person report after
being notified by the trucking company that he had quit and abandoned the
truck. After a press release asking for information on Tim, the police
received four reports from persons who believed that they had seen a
person who looked like Tim since he had been reported missing. The
police did not follow up on these reports.
        On August 3, 2004, Joyce was arrested on an unrelated intimidation
charge. In early September of 2004, while in prison, Joyce wrote to a
police officer and offered to provide information regarding narcotics in

                                      3
exchange for her release. During the conversation, the officer asked about
Tim, but Joyce refused to speak of it.
        On September 9, 2004, Joyce confessed her involvement in Tim’s
death. Specifically, Joyce claimed that she accidentally shot Tim inside the
truck at the farm. She then attempted to conceal the incident. Joyce
claimed that she left Tim in the cab and returned home. She claimed that
she returned later after buying five bottles of hydrogen peroxide from the
Dollar General store. She said that she pulled Tim’s body from the cab and
put his body in a wheelbarrow to move it to the back of the property.
However, when the body fell out of the wheelbarrow, she decided to burn
the body where it fell near a building on the property. She claimed that she
burned the body over the course of three or four days. Joyce also claimed
that she threw the gun used in the shooting into the river. She then claimed
to have taken the truck to Exit 19 to finish cleaning out the cab.
        Joyce took three police officers to the river and showed where she
had thrown the gun. Then they went to the farm where she showed them
where Tim’s body had been burned. Thereafter, the investigators followed
up on the details of Joyce’s confession. Using the GPS equipment in the
truck, they determined that the truck could not have been at the farm when
she said she was there. Also, Dollar General’s sales records did not show
any purchase of hydrogen peroxide for the time period claimed. The gun
was never recovered despite two searches of the river. No evidence of a
burned body was ever found at the farm.
        After Joyce gave her confession to police on September 9, 2005, she
wrote six letters while incarcerated, all of which were intercepted by the jail
and forwarded to the prosecutor. The letters were written on September 10
or 11 and September 15, 2005. Three of the letters were written to “Dear
Abby,” Rev. Billy Graham, and a former minister, Marvin Wiseman,
respectively. One letter was addressed to the officer investigating her case.
The other two were addressed to her family. On September 15, 2005, the
prosecutor obtained a search warrant to open the letters and did so.
        Joyce wrote letters to “Dear Abby,” Rev. Billy Graham, and Marvin
Wiseman on September 11, 2004. In Joyce’s letter to “Dear Abby,” in
September she requested help. She noted that “I know what I did, I will
never get out.” State’s Ex. 70.4. Also she wrote, “I know I did not think of
the boy’s [sic] then, but, someone else had control of my min[d].” Id. In
Joyce’s letter to Billy Graham, she related how she was scared, didn’t know
what to do, and wanted help. Her letter to Marvin Wiseman requested that
he help her and her family.
        In a letter to her family written on September 12, 2004, she
recounted the events of the night before the disappearance of Tim and how
she met Tim that morning. She also wrote that she wanted to write more
but couldn’t, “[I]f you know what I mean.” State’s Ex. 70.6. In a card to
her family written on September 10, 2004, she wrote a letter to her sons
which stated, “[w]ith my luck, I know the court’s [sic] won’t find it a self-
                                      4
       de[f]ence. Because of what I did after word’s [sic].” State’s Ex. 70.2. She
       also wrote “sorry” on the envelope. Finally, in a letter to a friend written
       on September 10, 2004, she wrote that she didn’t know how much she
       could write because “I know for sure they will read everything I write.”
       State’s Ex. 70.1. She also wrote about feeling like Tim is there helping her
       and that she was sexually abused as a child. She wrote that when she talked
       to somebody about something that had been bothering her for six months
       and got help for herself and Tim, she was put in jail. Also, she admitted
       that she could not remember the answers to questions that the police were
       asking her.


Id. at 941-43.

       In June 2009, Joyce filed a pro se petition for post-conviction relief, which was

amended by counsel in September 2012 to request relief on the grounds of material facts

not previously heard. A hearing was held in November 2012, and in December 2012 the

post-conviction court denied Joyce’s petition. This appeal followed. Additional facts

will be supplied as necessary.

                                 Discussion and Decision

                                  I. Standard of Review

       To prevail on appeal from the denial of post-conviction relief, the petitioner must

show that the evidence is without conflict and leads unerringly and unmistakably to a

conclusion opposite that reached by the post-conviction court. Thacker v. State, 715

N.E.2d 1281, 1284 (Ind. Ct. App. 1999), trans. denied.         A post-conviction court’s

findings and judgment will be reversed only upon a showing of clear error, which is error

that leaves us with a definite and firm conviction that a mistake has been made.

Benefield v. State, 945 N.E.2d 791, 797 (Ind. Ct. App. 2011). We accept the post-

conviction court’s findings of fact unless they are clearly erroneous, but we do not defer

to the post-conviction court’s conclusions of law. Id. We examine only the probative
                                            5
evidence and reasonable inferences that support the post-conviction court’s determination

and we do not reweigh the evidence or judge the credibility of the witnesses. Conner v.

State, 711 N.E.2d 1238, 1245 (Ind. 1999), cert. denied, 531 U.S. 829 (2000).

                                   II. Newly Discovered Evidence

        In order for newly-discovered evidence to merit post-conviction relief, the

petitioner must establish each of the following nine requirements:

        (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.

Bunch v. State, 964 N.E.2d 274, 283 (Ind. Ct. App. 2012), trans. denied. Joyce’s petition

hinged on allegations by Jessica Turner Angel that Angel had seen and briefly spoken to

Tim in February 2010 while she was working as a manager at a McDonald’s restaurant,

when she served him food. The post-conviction court concluded that Joyce failed to

satisfy at least three of the criteria for newly-discovered evidence. Specifically, the court

concluded that Angel’s alleged sighting of Tim was cumulative, that the evidence was not

worthy of credit, and that the evidence would not produce a different result if Joyce were

to be retried.1

        The court concluded that the evidence was cumulative because at least six other

witnesses testified at trial that they had seen Tim after his disappearance. “Cumulative

evidence is ‘additional evidence that supports a fact established by the existing evidence.

. . . [T]o be considered cumulative, evidence should be of the same kind or character.
        1
            The State also claims that Angel’s testimony would have been discoverable in time for trial if due
diligence had been used. However, the State misunderstands the timeline. Joyce was tried and sentenced in 2007,
and Angel’s alleged sighting of Tim did not occur until 2010.
                                                      6
That is, evidence will not be considered cumulative if it tends to prove the same facts, but

in a materially different way.’” Id. at 290 (citation omitted). Here, Angel’s testimony

was of the same character as the other evidence related to sightings of Tim after his

disappearance—witness testimony—and would not have proved that point in a materially

different way. We disagree with Joyce’s contention that Angel’s testimony is materially

different because she claims to have had a brief conversation with Tim, whereas the other

witnesses only testified to seeing Tim.

          The court also concluded that the evidence was not worthy of credit because of the

“nature of Angel’s prior conviction along with her inconsistent testimony at the

evidentiary hearing, and the fact that Tim is never seen on the videotape of their alleged

encounter at McDonalds.” Appendix at 117. Angel was convicted in 2008 of trafficking

with an inmate as a Class C felony after she attempted to smuggle contraband, including

controlled substances, into the Indiana Department of Correction. As for the videotape,

at the evidentiary hearing, a DVD was introduced which focused on the counter area of

the McDonald’s where Angel was working when she claimed to have seen Tim. Tim is

not seen on the video, either ordering or picking up food. The inconsistency to which the

court refers is likely the fact that Angel testified that she was so shaken after seeing Tim

that she went to the backroom of the restaurant for ten to fifteen minutes; however, the

DVD shows her working near the front of the store just thirty to forty-five seconds after

she allegedly encountered Tim. It is not within our province to assess witness credibility

or to replace the trial court’s assessment of credibility with our own. Bunch, 964 N.E.2d

at 292.


                                               7
       Finally, the post-conviction court concluded that the evidence would not produce a

different result if Joyce were to be retried. We agree. Multiple witnesses testified at the

original trial to having seen Tim after his disappearance, and one more witness testifying

to the same thing, with video surveillance that does not support the testimony, would be

unlikely to change the result. The State points out that there was also strong evidence

against Joyce: her confession, the letters she wrote while incarcerated, evidence of

motive and intent, and more. Altogether, we agree that addition of Angel’s testimony

would probably not lead to a different result on retrial. Regardless of whether Angel’s

testimony was credible or not, Joyce has failed to meet at least two other criteria required

to merit post-conviction relief here.

                                        Conclusion

       Concluding that Joyce has not met the requirements for newly-discovered

evidence entitling her to a new trial, we affirm.

       Affirmed.

RILEY, J., and KIRSCH, J., concur.




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